Oral Answers to Questions

HOME OFFICE

The Secretary of State was asked—

Alcohol Vendors

Ben Chapman: What powers are available to the police to shut down irresponsible vendors of alcohol.

Charles Clarke: The police and others already have a range of powers available to them to deal with irresponsible vendors of alcohol and the associated problems. The police can close pubs, clubs and other on-licence premises with immediate effect for up to 24 hours in the interests of public safety—that is, if there is or is likely to be disorder in or around the premises. The Licensing Act 2003 expands those powers to cover any licensed premises and allows the police to close premises where noise is causing a public nuisance. What is more, use of these powers will trigger an automatic review of the premises' licence and that review can consider all history of problems at the premises—in other words, it is not limited to the events that led to closure. Even where closure powers are not used, the Licensing Act will also allow the police to seek review of any premises' licence. The police have assured me that they will enforce all these powers rigorously.

Ben Chapman: Is my right hon. Friend aware that antisocial behaviour caused by young people who have drunk alcohol sold by irresponsible vendors of one sort or another is a major cause of concern, whether the constituents are in Heswall, Bebington, Bromborough or Eastham? Although the powers in the Licensing Act are welcome, in the past the police found, for example, that the trade would use ruses such as changing the landlord so as to have a new, clean figure in the premises where the record of the premises was poor, to avoid revocation. Can he assure me that the powers in the new Act will be much stronger, much more effective and benefit my constituents much more than the previous provisions?

Charles Clarke: My hon. Friend is right. I remember him showing me examples of such abuse when I visited his constituency in the Wirral some four or five years ago. The new Act will provide the powers to address those issues. Let me say clearly again today that it is vital that local authorities, working with the police, ensure that a rigorous regime is established. I believe that the fee regime that has been put in place will enable that to happen.

James Gray: Does the Home Secretary agree that the only reason why any licensee will apply for a 24-hour licence is to sell more drink and they will make more profit out of it to cover the extra costs? By definition, if more drink is sold, there will be more yobbishness, more violence and more bad behaviour. Will he not restrict licensing hours to their present format?

Charles Clarke: I do not accept the fundamental premise of the question. Licensees want flexibility as to which licensing hours they will follow. There is little evidence that any premises will go down the 24-hour route. To the extent that there is more flexibility, it will ensure that we match people's drinking desires more directly. It is very important, as I said in the Supply day debate on the matter, to distinguish in our minds between the licensing regime and the cost of policing alcohol disorder zones, which we will put in place.

Linda Gilroy: My right hon. Friend may know that Plymouth took part in the pilot scheme last summer and over Christmas, using the present powers, and will greatly welcome their being increased. Does he understand that that can entail an increase in the number of violent crimes, because the police are catching more people and taking more action against them, but the positive message from Plymouth is that that resulted in a fall in serious violent crime?

Charles Clarke: Plymouth is an example of an authority that is rigorous in trying to carry out the proposals and I congratulate it on that. That has meant that more low-level violent crimes are recorded, which is what we have been seeking to achieve. What it has also meant in practice in the pilots is that there have been fewer serious crimes of violence, which is precisely why we want to put in place more widely the measures adopted in Plymouth.

Damian Green: The Home Secretary may be aware that the Home Affairs Committee recently took evidence from a senior police officer suggesting that, in big cities with a large student population, it is routine for pub chains to sell themselves as offering not just cheap drinking, but fast drinking, through happy hours and other promotions. Such encouragement to young people to get drunk faster is a significant contribution to making city centres the vision of hell they too often are on Friday and Saturday nights. Does the right hon. Gentleman agree that we do not need new laws to stop that—just a sense of responsibility on the part of the drinks industry?

Charles Clarke: I agree with that, which is why the measures that my right hon. Friend the Secretary of State for Culture, Media and Sport announced a week or so ago specifically encouraged the drinks industry to put in place voluntary codes to address the irresponsible promotions that the hon. Gentleman described. That is the right way to go. I have spoken to a number of the main industry bodies and I believe that he is right that there is a desire to make the codes work. We will work with all parties to try and ensure that we achieve that.

Sally Keeble: My right hon. Friend referred to the possibility of the drinks industry having to pay some of the costs of policing alcohol-related disorders, which I think would help in dealing with the problems that we have in Northampton. Will he say some more about those proposals, and in particular about when they might be brought forward?

Charles Clarke: We are consulting on the proposal. As my hon. Friend says, the proposal is that, where a concentration of outlets is identified where particular binge drinking occurs, the local authority and the police together will designate the area and say to pubs and clubs, as well as off-licences, "You have to clean your act up and get it together." If that does not happen, there will be an entitlement to levy money to meet the costs of ensuring public order. We are consulting on the proposals and I believe that there is already a strong welcome for them from the industries concerned. I hope that we will be able to legislate to put them into effect in the near future.

David Davis: From what the Home Secretary said, he would accept that under-age drinking has soared out of control in the past several years. Can he tell the House what has happened to convictions and cautions for under-age drinking in the past seven years?

Charles Clarke: I cannot give the right hon. Gentleman the figures off the cuff, but I can say that it is important to take steps against under-age drinking, which is why one of the measures that we set out in the consultation paper to which I referred would give police the power to close pubs where under-age drinking had been taking place. I agree that there is an issue to be addressed and I believe that we are taking the steps to address it.

David Davis: I can help the Home Secretary. The figures show a decline in convictions and cautions for under-age drinking from 1997 to 2003 of 86 per cent., while such drinking was going out of control. At the same time, there was a reduction in convictions for drunk and disorderly behaviour and very few disorderly pubs were closed. He is right to lecture the industry on being responsible, but is not one reason for the unfettered growth in alcohol-fuelled crime and disorder this Government's neglect?

Charles Clarke: I do not accept that at all. Courtesy of my hon. Friends, I now have the figures on fixed penalty notices issued to deal with these issues. For example, on being drunk and disorderly, more than 21,000 fixed penalty notices were issued from 1 April to 30 November 2004, while 1,975 notices were issued for being drunk in a highway and 428 for drinking in a designated public place. This is a measure that this Government put in place and that is dealing with the issue in a way that is effective, rapid and on the spot, to try to drive out binge drinking.

Huw Irranca-Davies: My right hon. Friend's Department should be congratulated on the cross-cutting way in which it is approaching this issue, because there is no one silver bullet. Does he recognise that one of the most important aspects is the design of a mixed type of facility in a particular area? I appreciate his steer in respect of what local authorities and licensing agencies can do to ensure that, even if we do not quite have more of the café culture, we at least have less of the gin lanes.

Charles Clarke: I agree with my hon. Friend. The most impressive scheme that I have personally seen was in the centre of Manchester, where new outlets were licensed specifically on the basis that they would be appealing to particular sections of the market by age, culture and so on, so that there was no one place with a large number of young people and another place with a large number oldies, but a mix ensuring that the whole situation was far more disciplined. The licensing powers that local authorities have been given under the Licensing Act 2003 allow the matter to be addressed in a constructive way, and much more so than in the past.

Police Effectiveness

Nick Gibb: What research he has conducted on the effectiveness of policing in England and Wales.

Hazel Blears: The Home Office has an ongoing research programme focused on improving policing effectiveness. Studies published in 2004 covered a wide range of topics, including neighbourhood policing and tackling organised crime.

Nick Gibb: That is all very good, but does the Minister agree with the criticism of the police made by the chief inspector of constabulary, Sir Keith Povey, that too many police constables still patrol in pairs and rarely get out of their cars to walk the beat?

Hazel Blears: The hon. Gentleman will know that we agree absolutely that we need to drive up the amount of time that police officers spend on front-line policing. That is a very important measure to us this year. I am keen to see not only police officers, but community support officers, of whom there are a number in his own force—I think that he has 149 CSOs at the moment out there on patrol—because it is important for the public that police officers and CSOs are out there reassuring them and being visible, accessible and in touch.

Brian Jenkins: On that point, will my hon. Friend not only issue a guidance table, but make it a requirement that every uniformed officer, irrespective of rank, spends at least two hours per shift on highly visual policing duties on the beat?

Hazel Blears: I recognise my hon. Friend's concern that all police officers should be on the front line reassuring their communities. I cannot remember which force was involved, but I understand that, in a recent experiment, every officer from the chief constable down went out on to the streets and, on that day, no crimes were committed at all. I am keen to ensure that police officers do that. That is why we are asking the police to tell us how they spend their time so that we can drive up the number of police officers on the front line from the current average of about 60 per cent. to 70 per cent. That will free up an extra 12,000 officers and make a significant difference.

Annette Brooke: Dorset is the second lowest funded police authority in the country, yet massive resources are allocated to Bournemouth at weekends to cope with the influx of binge drinkers from far and wide. What action will the Minister take to support Dorset police in maintaining effective policing for all Dorset residents throughout the county? Many are missing out because there are not as many community beat officers in all our communities as we would like.

Hazel Blears: The hon. Lady will acknowledge that this year's police funding settlement is one of the best that we have seen in recent years. Extra money for the police ranges from 3.75 to 6.8 per cent. and, together with our record number of police officers—140,000—we also have 4,000 CSOs. It is important that those police officers provide a service throughout their communities. That is why we have introduced measures to tackle binge drinking in particular and to ensure that officers are not abstracted from those problems in future. I hope that the hon. Lady will welcome the proposals that we have recently issued for consultation.

Andrew MacKinlay: The Minister will be aware that Essex police authority has received accolades for maximising its scarce resources and keeping costs down. The authority spends £137 per resident compared with an average in the shire counties of £151. What incentive is there for Essex police authority to keep down costs, given that there is no recognition of its effectiveness compared with the awards to other comparable police authorities, such as Kent? Is it not unfair discrimination that those who maximise scarce resources and increase operational effectiveness receive a pat on the shoulder but no bonus in the form of additional resources to encourage them?

Hazel Blears: My hon. Friend will recognise that this year's police settlement is a generous one. I am aware of the excellent work that is being done by Essex police authority, particularly in tackling bureaucracy. I have just seen a photograph of the chief constable of Essex with his staff burning forms representing the bureaucracy in their force. I am delighted about that, and we are encouraging them to do so.
	We are developing a system in which we will grade forces as excellent, good, weak or poor. We want to give the excellent forces more freedom and flexibility, particularly from inspection, to give them an incentive to carry on being excellent forces.

Andrew Mitchell: Is the Minister aware that reported violent crime has increased by nearly 100 per cent. under this Government, with yet further increases admitted in figures announced last week by the Home Office? Yet over the same period, detection rates for those awful crimes fell from nearly 80 per cent. before 1997 to only 50 per cent. today. That is the record of the past eight years. When do the Government plan to do something about it?

Hazel Blears: As usual, the hon. Gentleman is selective in the statistics that he chooses to use. He did not mention that the British crime survey—the most authoritative survey during the past 20 years—shows that all crime is down by 11 per cent., or that recorded crime is down by 6 per cent. Those two measures—BCS and recorded crime—are both down, but he did not mention that.
	The hon. Gentleman referred to violent crime. That is an important and serious issue, but he did not say that there has been a 35 per cent. drop in violent crime in the past 10 years and that it is now remarkably stable.
	Detection rates have started to increase again because we recognise that the public want more crime to be detected. If the hon. Gentleman examines the figures for the past 12 months, he will see a significant increase in detection. He should be a bit more honest and acknowledge that he intends to cut the Home Office by £1.6 billion. How many cuts in the number of police officers will his financial projections mean?

Ian Lucas: Residents in Wrexham have noticed a massive increase in the effectiveness of policing, thanks to the introduction of a community-based beat manager system. Is not the introduction of more neighbourhood wardens the way to improve effectiveness even further? I am delighted to say that we have community support officers at last in north Wales.

Hazel Blears: Like my hon. Friend, I am delighted to welcome the community support officers in Wales. I am convinced that good teams of neighbourhood police officers, community support officers and wardens, who are in touch with their communities, can drive down crime. The interim evaluation of CSOs that we conducted recently showed that, when they were introduced in Leeds city centre, vehicle theft fell by 49 per cent. and personal robbery dropped by 47 per cent. That is not all due to CSOs, but I am sure that they made a significant contribution.

Prisons

Teddy Taylor: If he will make a statement on prison overcrowding.

Hazel Blears: The capacity of each prison is limited to numbers that minimise the risk to safety and security. There are currently 74,100 people in prison and 77,168 usable places. A new 840-place prison will open in Peterborough in March to add to the 17,000 extra places that have been built since 1997.

Teddy Taylor: Do not the Government face a specific problem in housing women prisoners? The latest figures that I have show that, although the number of men in prison has increased by 50 per cent. in the past 10 years, the number of women has increased by 173 per cent. Is the Minister satisfied with the care that is given to women prisoners, given that many of them come from the most terrible backgrounds and deserve a great deal of sympathy?

Hazel Blears: The hon. Gentleman has a good record on raising those important issues in the House. I am pleased to tell him that, last Friday, the women's prison population was 4,261—down by 3 per cent. from last year. Contrary to previous trends, the women's prison population is beginning to decrease. In the past 10 years, the number of women in prison tripled yet last year, for the first time, it started to reduce. That constitutes a success but I do not dispute that many women in prison suffer from a range of problems, as he said, and targeting our support at them is therefore especially important.

Neil Gerrard: Is my hon. Friend aware of the anxieties that have been expressed that pressures on the Prison Service mean that some accommodation is mothballed and that that contributes to overcrowding in the places that are used?

Hazel Blears: I am not aware of any specific instances. If my hon. Friend wants to send me details, I will be happy to look into the matter. I am sure that he acknowledges that, since 1997, we have increased prison places by 17,000. A further 3,000 are on their way. They are real prison places, unlike the promises that the Conservative party makes.

Mark Oaten: Does the Minister acknowledge that overcrowding leads to other problems in prisons and that that is why 74 per cent. of young prisoners leave and reoffend? Last year, 17,000 prisoners self-harmed and 95 committed suicide. Two thirds of our prisoners have the reading skills of an 11-year-old and, last year, 10,000 drug-related crimes took place in prison. Do not those figures suggest a shambles in our Prison Service?

Hazel Blears: No. I reject the contention that it is a shambles. The hon. Gentleman raises important issues. We have said that prison must be there for dangerous and serious offenders but that we need a system of more rigorous community penalties for those who are serving sometimes fairly futile short sentences. We are beginning to rebalance matters. The projections are lower than they were initially, so the new sentences are beginning to kick in. There is a huge programme of work to examine suicide in prison because that is a matter of great concern. There are also plans to ensure that we provide sufficient places for prisoners so that the courts are not influenced by that factor in their sentencing decisions. When they need to send people to prison, we will ensure that they are accommodated. Providing useful activity—for example, literacy, numeracy or information technology—for people in prison is a top priority to try to ensure that we break the cycle of reoffending when people are released from custody.

Hilton Dawson: I am ashamed to have been a Member of Parliament over the past eight years, during which 16 children have died in prison. That is coupled with the ghastly fact that we have closed down 24 places in local authority secure children's homes, where those children could have been kept safe. Is it not time for the Home Office entirely to review the position of children in prison to ensure that there are no more deaths?

Hazel Blears: I understand my hon. Friend's concern, and every Member of the House will agree that the death of any young person in custody is a terrible tragedy. It is important to have appropriate accommodation for young people, but I am afraid that, in some circumstances—when they could present a serious threat to the community, for example—it is appropriate for them to be held in custody.
	This is a matter that we take very seriously and my hon. Friend is right to say that we need adequate secure accommodation. Indeed, many young people are held in local authority secure accommodation. I understand the depth of his personal feelings on this issue, but it is important that young people, as well as adults, are held in the right accommodation and that we get the balance absolutely correct.

Cheryl Gillan: I am surprised that the Minister should come to the Dispatch Box so ill informed. Last week, the chief inspector of prisons said that our prisons were still 24 per cent. overcrowded and operating perilously close to capacity. Money has been taken from the Prison Service's budget to resolve the financial crisis in other parts of the Home Office, which has led to a four-month recruitment freeze and the mothballing of more than 1,000 prison places. Will the Minister confirm that the service is now considering reducing the number of offending behaviour programmes for prisoners and, in the words of the director general of the Prison Service, merely sustaining
	"the basic operation of the Service"?
	Is this the way to run the Prison Service?

Hazel Blears: It is this Government who are running the Prison Service and providing extra capacity. As I have said, 17,000 extra places have been created since 1997, and a further 3,000 are on the way—

Cheryl Gillan: indicated dissent.

Hazel Blears: The hon. Lady shakes her head, but these are real places for real prisoners. A brand-new prison will open in Peterborough in March, providing an extra 360 places, particularly for women—an issue raised by the hon. Member for Rochford and Southend, East (Sir Teddy Taylor)—and there will be 450 places at the Bronzefield prison. This Government have taken the issue seriously by ensuring that we have the right capacity and by developing modern, purpose-built premises, with proper facilities for education and useful work, to house our prisoners. The hon. Lady should ask the shadow Chancellor how many cuts in prison places would result from his budget proposals.

Community Integration (Peterborough)

Helen Clark: If he will make a statement on the integration of asylum seekers and economic migrants in Peterborough.

Des Browne: I acknowledge that there have been some difficulties in Peterborough with the integration of asylum seekers, refugees and migrant workers. However, community relations there are improving, as I saw when I visited Peterborough on 15 December to see how the Government's investment of just over £1.5 million in a £2.2 million programme of nine projects in Peterborough was working. The projects aim to join statutory and voluntary agencies to provide more cost-effective services for the benefit of the whole community, including asylum seekers, refugees and migrant workers.

Helen Clark: Does the Minister agree that, instead of being an asylum hot spot, Peterborough has recently become a model for managing and controlling immigration properly? We have been greatly assisted by local employers such as Peter Boizot, the owner of the Great Northern hotel, who welcome these additions to the work force, and by the splendid New Link centre, which is funded by this Labour Government and provides vital help and support to all our new arrivals to Peterborough.

Des Browne: When I visited Peterborough on 15 December, it was clear to me that the council and others who were represented at an interesting meeting were proud of the way in which Peterborough had integrated asylum seekers, refugees and, indeed, migrant workers. There are many good examples of the benefits that migration can bring our communities in Peterborough. It is unfortunate that some of the circumstances there have been so badly misrepresented and that that has done so much damage to the community, but people are working together and moving in the right direction.

Humfrey Malins: I understand that quite a large number of failed asylum seekers now reside in the Peterborough area. Has the Minister any idea how many there are and what plans has he to remove them?

Des Browne: The hon. Gentleman has raised an important issue. The removal of failed asylum seekers is a priority for me, as Minister with that responsibility, and for the Government. That is why I am pleased to be able to announce that, since 1997, we have been able to double the number of failed asylum seekers whom we have been able to remove from the country and that, because of steps we have taken—including changes in the law, for instance in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004—we are confident that we shall be able to increase the number further.
	I am sorry that I cannot help the hon. Gentleman with the specifics of his question. The community in Peterborough did not know exactly how many failed asylum seekers there were. I acknowledged that this was an issue during our discussions, however, and we are working with the community to deal with it.

Alcohol (Purchases for Minors)

Helen Jones: If he will increase the penalties for those who knowingly purchase alcohol for a minor; and if he will make a statement.

Caroline Flint: We have recently raised to £80 the fine issued under fixed penalty notice for buying alcohol for those under 18. The Licensing Act 2003 will increase the maximum fine for purchasing alcohol for a minor from £1,000 to £5,000, as well as the maximum fine for selling alcohol to children.

Helen Jones: I welcome the provisions in the new Act, but as my hon. Friend will know, in parts of my constituency real problems of crime and disorder have been caused by people purchasing alcohol for youngsters, usually in return for a share of the proceeds. Can my hon. Friend assure me that she will monitor the new provisions carefully and ensure that the police and trading standards officers have enough resources to tackle the problem? Will she also monitor the fines issued by the courts to ensure that they are sufficient to deter those who are caught from offending again?

Caroline Flint: My hon. Friend has raised an important point about those who, on behalf of young people, go into licensed establishments such as bars, and let us not forget off-licences, supermarkets and the 7/11 on the corner of the street, because it is important to tackle them as well. We will consider monitoring those establishments and, following our consultation last week, we have announced that we will review the penalties for alcohol offences to establish whether they are robust enough. I hope that my hon. Friend will make a contribution to our further consultation.

Licensing Act

Andrew Selous: What assessment he has made of the effects on police resources of implementation of the Licensing Act 2003.

Hazel Blears: Under existing licensing law, the police annually engage in over 1.6 million administrative licensing processes. That will be streamlined to around 170,000 under the Licensing Act 2003, which will result in a saving of up to £15 million annually. The Act will also give the police further powers to tackle alcohol-related disorder, for instance through introducing temporary or permanent reductions in trading hours.

Andrew Selous: Given that the United Kingdom has some of the worst binge drinking in Europe and that the police have expressed serious concern about the advent of 24-hour drinking, what reassurance can the Minister give that the police will have enough officers available between 2 am and 6 am when the Licensing Act is implemented?

Hazel Blears: I am not sure whether Home Office Question Time is turning into happy hour, but we seem to be having an extensive discussion on this issue.
	We should certainly take account of pressures on the police. According to Rick Naylor, president of the Police Superintendents Association,
	"Extended licensing hours are not a concern for us. The problem exists now with all pubs and clubs closing at two set times, spilling out thousands of people onto our streets . . . We believe that by a more gradual dispersal of the crowds over a longer period of time, these problems would be significantly reduced."
	However, he also welcomed the possibility that licensed premises would have to contribute not just to policing costs but to other local costs of disorder on our streets. That is a statement from the police that they are preparing to deal with the issues, and in fact they are dealing with them now.

Kelvin Hopkins: I have recently heard allegations and received evidence that mini-markets at garages in my constituency are selling alcohol to under-age people. Does my hon. Friend agree that withdrawing those mini-markets' licence to sell alcohol would be the most effective way of stopping them doing that?

Hazel Blears: My hon. Friend makes an extremely important point. The transfer of the licensing regime to local authorities, which are very much in touch with their communities, should give them extra powers not just to limit hours but to review licences, to suspend them, and if necessary to withdraw them.

Julian Brazier: Surely one of the best ways of saving police resources and public hassle is to prevent irresponsible people from getting licences in the first place. Can the Minister confirm that, under the new legislation, the council considering an application from an individual licensee is no longer allowed to take account of police intelligence on their conduct with regard to selling alcohol? It is not even allowed to take account of convictions in that regard if they have expired.

Hazel Blears: The hon. Gentleman should know that when councils consider applications for licences, they will be able to listen to representations from the police, from local residents and from others in the area. As I understand it, in the past, courts could look at taking away a licence only where someone was convicted for a second or subsequent time of serving to under-age youngsters. Under the new regime, they will be able to consider doing so where someone has been convicted for the first time. Therefore, the powers will be even stronger.

Kevan Jones: A lot of the focus has been on 24-hour drinking in respect of the new Act, but does my hon. Friend agree that the provision to give local people a say not only in licensing policy but in individual applications is welcome? It has been welcomed wholeheartedly in local government, most recently in the north-east by the new Liberal Democrat chair of Newcastle city council's licensing committee, Anita Lower.

Hazel Blears: My hon. Friend makes an important point. The transition from the magistrates court to the local authorities is a once-in-a-lifetime chance to look at every licence over the next few months. The process from now until November, when those licences are being reviewed, is crucial to the agenda of tackling binge drinking. I say to the local authorities concerned: look at every licence carefully and take into account what local people and the police are saying. We must get a better mix in town and city centres, so that premises appeal to a range of people rather than appealing solely to young people and encouraging them to drink irresponsibly.

Michael Fabricant: How can the Minister be so sanguine about the prospect of 24-hour drinking? She prayed in aid the president of the Police Superintendents Association to my hon. Friend the Member for South-West Bedfordshire (Andrew Selous) but she will have heard the comments of Sir John Stevens and the comments of police constables on the beat, who say that it is hard enough tackling one person who is drunk, without hordes and hordes of people being drunk. We heard earlier about the problems in large cities. In the city of Lichfield, we have a problem, too.

Hazel Blears: I am sure that there is a problem in Lichfield and other places. It is not confined to the inner cities. Rural market towns and very small areas face similar problems of disorder fuelled by alcohol. I am not complacent at all. I recognise police concerns about the need to deploy officers on the streets, but if the police work with local authorities, with the newly licensed door supervisors at the premises, and with the many public sector people who are on the streets, we can help to get a grip on the problem. We must ensure that the industry itself has a more responsible attitude towards drinking. I am delighted that some of the big chains, including Wetherspoon and Yates's, are outlawing irresponsible promotions. That is an extremely good sign, and I would encourage many more licensees and retailers to do the same.

Together Initiative

Kevin Brennan: What recent assessment he has made of the Together initiative.

Fiona Mactaggart: On 28 October 2004, the Government published two reports highlighting progress made since the antisocial behaviour action plan was launched in October 2003. Results from a national antisocial behaviour survey showed that, between October 2003 and September 2004, 5,383 acceptable behaviour contracts were made and 2,633 antisocial behaviour orders issued, and that between January 2004 and September 2004, 158 crack house orders and 418 dispersal orders were made. Projecting the results of the survey nationally, that is in excess of 100,000 cases tackled in the 12-month period.
	In addition, more than 2,500 people were trained at Together academy events and more than 6,200 practitioners have used the Together action line. We also announced the 50 new Together action areas.

Kevin Brennan: I thank my hon. Friend for her comprehensive answer. What message would she give to the agencies participating in a meeting that I am organising in my constituency next month, under the auspices of the initiative, to ensure that we tackle and refuse to tolerate antisocial behaviour? Will she comment on the proposal announced in the House last week that the Liberal Democrats want to reduce the age of drinking to 16, which is—

Mr. Speaker: Order. I call the Minister.

Fiona Mactaggart: I had the privilege of speaking at the Together academy in Cardiff, and I want to praise people there who have worked well together to drive out antisocial behaviour in their communities. My hon. Friend asked what message I would bring to the meeting that he is co-ordinating, and my answer is, keep at it, working together. I would also stress that we are on the side of the law-abiding majority in wanting to drive out the antisocial behaviour of the minority.

Community Support Officers (Leeds)

Colin Burgon: What assessment he has made of the role of community support officers in community policing for the Leeds area.

Charles Clarke: West Yorkshire police commissioned the centre for criminal justice studies at the university of Leeds to produce a detailed evaluation of community support officers in Leeds and Bradford city centres. The final report, "Patrolling with a Purpose", was published in July 2004. It gave very positive indications about the impact of CSOs on crime and disorder and public confidence. The report showed that CSOs in Leeds spend a very high proportion of their time—77 per cent.—on high-visibility patrol. In the first year of their deployment, theft of vehicles fell by 49 per cent. and personal robbery declined by 47 per cent.

Colin Burgon: I would like to confirm what my right hon. Friend said about the good work of community support officers, particularly those working in association with the Wetherby and Garforth police stations in my constituency. Along with their police colleagues, they are playing a vital and effective part in launching the new neighbourhood policing strategy. However, I have a piece of shocking news: the Liberal-Conservative alliance that runs Leeds is now trying to claim credit for extra CSOs, extra CCTV cameras and extra police officers. Does not that dramatically show how Labour is setting the agenda in our vital public services by talking about investment rather than cuts?

Charles Clarke: I am indeed shocked, but not surprised, to hear that the council is claiming credit for this Government initiative. The fact is that it is the Government who provided substantial funding for community support officers, who pioneered the approach and who established the legal powers. I want seriously to stress that we want to carry it through in partnership with local authorities. I am prepared to give the council the credit that is due to it, but it should give us the credit that is due to us.

Binge Drinking

Iain Wright: What steps are being taken to tackle binge drinking.

Hazel Blears: More about drinking, I am afraid. The Government are working through the alcohol harm reduction strategy for England to tackle the health and crime and disorder problems associated with binge, under-age and chronic drinkers. As part of that, the recent alcohol misuse enforcement campaigns have shown that a united effort to crack down on binge drinking can make a real impact, but we are not complacent and we recognise that work needs to be done to reduce the likelihood of alcohol misuse happening in the first place.

Iain Wright: I am extremely concerned about binge drinking, particularly as a report in my local paper, the Hartlepool Mail, recently suggested that almost half of 15 to 16-year-old schoolgirls in my constituency had drunk up to 14 units of alcohol in the previous week. A local nightclub, the Wesley, was recently bought by new owners, who voluntarily clamped down hard on excessive drinking, especially among the young, with beneficial results in respect of the number of incidents occurring in or near the club. What else can the Minister do to ensure that more pubs and clubs emulate the Wesley and encourage responsible drinking? Perhaps she could ensure that Hartlepool has one of the first alcohol disorder zones.

Hazel Blears: I visited my hon. Friend's constituency while he was seeking election. As a result of his excellent activity in the constituency, he is now a fine Member of Parliament representing the good people of Hartlepool. I am delighted that clubs in his area are taking a more responsible attitude to drinking. When I visited Hartlepool, one of the pubs had an "All you can drink for £8" promotion, but I hope that we have seen the last of that. There is more that we can do to work with schools to educate young people about the damage that alcohol can do to them, but many pubs and clubs now recognise that it is good business to run premises in which there is good order and where people can have an excellent night out without getting involved in crime, disorder and binge drinking. I encourage the clubs in his area to adopt the best practice that he has highlighted today.

Anne McIntosh: We heard earlier about the number of fixed penalty notices that are being issued. Does the hon. Lady accept that they are failing to address the problem because the extent of binge drinking has increased, and they are, in large measure, left unpaid?

Hazel Blears: No, I do not accept that at all. Some 4,000 fixed penalty notices were issued in the 13 days over Christmas, which is a tremendous testament to the hard work of the police service in carrying out proactive policing, issuing on-the-spot fines and facing young people with the consequences of their behaviour. If you get a fine of £80 on your night out, Mr. Speaker, it ought to act as a pretty significant deterrent, and it would certainly mean that you would have less money to spend on drink. I can tell the hon. Lady that some 50 per cent. of fixed penalty notices are paid straight away and up to 75 per cent. are paid when they become a fine, which is not a bad record for an on-the-spot penalty.

Mr. Speaker: I can tell the Minister that if I get fined £80 on my night out, it will make the headlines for sure.

Richard Ottaway: Is the Minister aware that at night in Croydon, we have 20 extra policemen in the town centre to deal with binge drinking on Thursday, Friday and Saturday nights? Those 20 policemen are thus not on the beat. Does she accept, as it was pointed out earlier, that the beneficiaries of binge drinking—the vertical retail outlets—should pay for such extra policing? Although the Home Secretary may be consulting on that, frankly it is time for action.

Hazel Blears: Which is exactly what we are doing—in two ways. We are consulting on the proposal to establish alcohol disorder zones. I know that there is a problem in Croydon. I recently arranged for some of the chief executives of major alcohol producers to go out on a Saturday night in places such as Croydon and Romford so that they could see the situation for themselves, and it is fair to say that several were quite shocked by the extent of the problem. We are consulting on alcohol disorder zones, which will mean that licensed premises will have to make a contribution; and we have the new fee structure, under which, the hon. Gentleman will be pleased to know, vertical drinking places will have to pay more for inspection, administration and enforcement.

Police Numbers

Stephen Hepburn: If he will make a statement on police numbers.

Caroline Flint: The Government have delivered record police numbers. I am pleased to say that there are now nearly 140,000 police officers, which is an increase of more than 12,500 since 1997. In addition, there are 4,600 community support officers, who all contribute to increasing police visibility in our communities. We intend that number to rise to 5,500 by the end of March. It is clear that the Government have delivered an increase in policing of historic proportions.

Stephen Hepburn: I welcome the national increase in the number of police officers, which is indeed impressive, but I remind the Minister that when that is broken down into command areas, it does not mean that a lot of extra police are on the beat. May I urge her to increase her efforts—I know that she is making a strong effort in the Home Office—to raise the numbers of police on the beat and community officers, to reduce bureaucracy in police stations, and to encourage initiatives such as the 24-hour hotline in South Tyneside for reporting antisocial behaviour?

Caroline Flint: That last point is a good idea. My hon. Friend is absolutely right about how police forces must play a role in restructuring their policing to meet local needs. I am pleased that the divisional commander in his area has done exactly that by restructuring staffing so that the number of community-based police officers in Jarrow has increased. We will ensure that we examine performance to find out whether police are spending their time behind a desk or out in the community doing what they are trained to do: catching criminals and reassuring the community that they are doing just that.

Alistair Burt: But is not the Minister aware that it is not just how many officers the chief constable has but how they are used that matters? In Bedfordshire, seven years ago, there were two ring-fenced grants in the police budget; this year there are 29. Does not she appreciate how that ties the hands of chief constables so that they cannot deploy their officers in the way that local communities want? That is at the heart of the problem, and unless that question is addressed we shall still see rising crime.

Caroline Flint: We need to remember that one of the reasons why some of those funds are ring-fenced is that communities have asked for that to be done. That is partly because people think that some issues, such as the rural crime fighting fund, are important. Let us look at that against a real-terms increase of 21 per cent. in police funding since 1997, and an increase in the number of police officers—not forgetting the community support officers, opposed by the hon. Gentleman's party. At the end of the day, we can provide more resources from central Government, as we have done. We have given more attention to the crimes that are of most concern to the community. We have looked at ways of ensuring that we reduce bureaucracy, and we have given opportunities to civilian staff to do some of the jobs that police officers clearly should not be doing because they should be out there catching criminals.

Lindsay Hoyle: My hon. Friend is right. There are more police, but the problem is that people want more visibility, especially in urban and rural areas such as Chorley. Will she talk to police constables to ensure that there is less paperwork and more visibility, to fight crime?

Caroline Flint: I agree, and that is exactly what we are trying to do. We welcome the support of MPs on both sides of the House to make that point to their chief constables. Let us not forget that under the Tories there was no ring-fencing and police numbers went down.

Patrick McLoughlin: But can the Minister explain the statement she issued to the House last week on 27 January? She told the House that in Derbyshire the number of operations for which firearms were issued rose from 167 in 2000–01 to last year's figure of 369 firearms incidents, yet at the same time the number of police officers authorised to use firearms fell from 81 to 70?

Caroline Flint: As the hon. Gentleman is fully aware, we are currently looking at a review of firearms legislation and taking soundings on firearms licensing. The process is ongoing. The review has closed and we are considering the responses. I am happy to look at the points that the hon. Gentleman raises, but the key issue is that there are more police officers than ever before and also more people working with the police—people doing drug testing at our police stations, and civilian staff involved in detention and custody suites. More and more, we are enabling our police officers to do the job that they should be doing, equipped with full powers, while ensuring that there is a family of law enforcement so that we can meet all the different pressures on the police service today.

Police Call Centres

Barbara Follett: What measures his Department is taking to ensure that police call centres are efficient and responsive.

Hazel Blears: Successful call handling is central not only for the satisfaction of the public, but also for the effective investigation of crime and management of intelligence. As part of a national strategy to improve call handling across all forces, the police reform White Paper set out a number of projects that the Government are bringing together.

Barbara Follett: Is my hon. Friend aware that Hertfordshire constabulary, normally excellent in every way, has experienced severe problems with its new call centre at Welwyn Garden City for the past 18 months? Constituents have had to wait 10 minutes for their 999 calls to be answered, and in some regrettable cases no action was taken afterwards. Will my hon. Friend do all that she can to ensure that the lack of adequately trained staff, which apparently caused those problems, is rectified?

Hazel Blears: This is an extremely important issue. Whenever I visit forces and communities, the issue that is constantly raised is call handling and responsiveness, and I am aware of the difficulties in my hon. Friend's force area. I understand that Hertfordshire has made that a priority, in response to complaints from the community, and has set up a single non-emergency number which is beginning to take some 999 calls and that is helping to draw demand on the service. There are 1.3 million calls to her local force, so the volume is huge, but she is right to say that we need properly trained, high-quality staff in the call centres to ensure that the service to the public is of a proper standard. I shall certainly do everything I can to impress the importance of that on her local force—and indeed nationally.

Vincent Cable: Does the Minister accept that there is a distinction between 999 calls, where the service is usually good, and non-emergency calls, where it is often abysmal, to the extent that large numbers of criminal offences are never reported or recorded? Will she investigate in particular the position in London, where we are told that in large parts of the capital it may be two years before anything can be done to have an even half-decent reporting system for non-emergency calls?

Hazel Blears: This is an important area. The hon. Gentleman will be pleased to know that we are now working on plans for a single national non-emergency service. It is apparent that many of the calls that go to the police would be better dealt with by local authorities—community psychiatric nurses, for example, if there is a problem in the community. We want to try to ensure that calls to the non-emergency number are channelled to the right people at the right time, so that there can be a much quicker response. We are making significant progress on that national non-emergency number. Responsiveness and call handling are an absolute top priority for the public, and that is why we are working on national standards, which will be in place everywhere in the country by the end of 2006. Every force, including London, will be expected to comply with those standards.

Year of the Volunteer

Tom Levitt: What his assessment is of the impact of the year of the volunteer 2005.

Fiona Mactaggart: The year of the volunteer 2005 was launched by the Chancellor and the Home Secretary on 10 January. Three key aims of the year are to recognise volunteers and celebrate their contribution, to demonstrate the impact and benefits of volunteering, and to increase the availability of volunteering opportunities throughout this year and beyond. In order to provide a lasting and worthwhile legacy of the year, we are taking the opportunity to invest in increasing capacity in the voluntary and community sector through investment programmes such as ChangeUp and Futurebuilders.

Tom Levitt: I thank my hon. Friend for that answer and very much welcome the national year of the volunteer. Does she agree that volunteers have very much to offer and that we are far from tapping the capacity that they have to help our communities? Will she ensure that during the year we look not just at conventional volunteering opportunities but at new areas? I think in particular of the way in which groups of young people, such as those in Glossop in my constituency, are actively involved in volunteer groups that are fighting antisocial behaviour.

Fiona Mactaggart: I thank my hon. Friend for that supplementary question. I recognise his wide range of activities as vice-chairman of the all-party group on deafness and as chair of the Community Development Foundation. Of course volunteers have a huge amount to offer in improving the quality of all kinds of services. Members on both sides of the House are involved in volunteering and voluntary organisations in their constituencies, and there is a fantastic opportunity this year to use the energy of volunteers to solve social problems and to find new ways of tackling them. I believe that Members can provide some real leadership in their communities.

Asylum Seekers

Tom Harris: How many failed asylum seekers resident in (a) Glasgow, Cathcart and (b) the United Kingdom are in receipt of hard case payments; and if he will make a statement.

Des Browne: According to provisional management information, as at 21 January there were no failed asylum seekers in section 4 accommodation in my hon. Friend's constituency. There were, however, 2,223 in section 4 accommodation in the United Kingdom as a whole.

Tom Harris: I am grateful to my hon. Friend for that answer, because it flatly contradicts those who criticise the Government for leaving failed asylum seekers without accommodation or any income. In fact, the truth is that those who do not have a legitimate claim for asylum in this country can claim hard case payments provided that they co-operate with the authorities for their eventual return home. Will my hon. Friend highlight and improve awareness of the hard case payment scheme, and assure the House that finance is in place to meet any substantial consequent increase in take-up?

Des Browne: Failed asylum seekers are expected to leave the UK, and there is nothing to stop the vast majority of them from so doing. When they do not leave and it is appropriate that they should be removed, it is the responsibility of Government to remove them. The issue was raised earlier in questions, and the improvement in removals was recognised. Indeed, it was recognised by the hon. Member for Woking (Mr. Malins), who speaks on these issues on behalf of the official Opposition, in a debate in Westminster Hall in July, when he said that he had no further advice for the Government in this area. I think that even he would agree that working on a supportive basis under section 4 with people who genuinely cannot leave is the appropriate thing to do. We in Government are happy to provide that support as long as those failed asylum seekers continue to co-operate with us.

Zimbabwe

Joyce Quin: If he will make a further statement on his Department's policy on the repatriation to Zimbabwe of Zimbabwean nationals whose asylum and residence applications to the UK have been unsuccessful.

Des Browne: The Government's position remains as set out in the statement that I made on 16 November. The treatment of Zimbabwean asylum applicants is the same as that of all other nationalities. There are Zimbabweans in need of international protection from persecution. Our asylum system provides that protection, and will continue to do so. People who need international protection are given it, but if an asylum and human rights claim by an individual of any nationality is refused, and any appeal to the independent appellate authorities is unsuccessful, we consider that it would be safe for that individual to return to their country of origin. They are expected to leave voluntarily, and if they do not do so we will seek to enforce their return.

Joyce Quin: I am worried about the Department's policy of allowing failed asylum seekers to return to Zimbabwe in certain circumstances, which might result in the return of one of my constituents, who is a valued member of the local community. Is my hon. Friend aware that the United Nations High Commissioner for Refugees opposes asylum seekers being returned to Zimbabwe at present? There are worrying accounts of asylum seekers on their return being handed over to Mugabe and his henchmen.

Des Browne: I am, of course, aware of the UNHCR position, which is based on a broad assessment of the situation in Zimbabwe generally. However, asylum and human rights claims are not decided on the basis of the general situation—they are based on the circumstances of the particular individual and the risk to that individual, as they are in relation to all asylum seekers, wherever they come from. Those who are found to be at risk because of the situation in Zimbabwe will be granted asylum or other appropriate protection. For them, the question of removal does not arise. With regard to my right hon. Friend's individual case, I am happy to consider to any information that she wishes to submit.

Iraq

Jack Straw: With permission, Mr. Speaker, I would like to make a statement on the elections that were held in Iraq yesterday.
	First, however, let me deal with the tragic crash of an RAF C-130 Hercules aircraft. As the House will be aware, the aircraft came down approximately 30 km to the north-west of Baghdad, at half-past four in the afternoon, Iraq time, yesterday. The aircraft was flying from Baghdad international airport to Balad airbase. The site of the crash has been secured, and we are investigating its cause. The House will understand that it would be wrong at this stage to speculate about possible causes. Ten United Kingdom service personnel were onboard the aircraft and, sadly, are presumed killed— nine were from the Royal Air Force and one from the Army. Their next of kin are being informed. The Ministry of Defence will release the names of those who were onboard only once this process is complete and the families have been given time to inform other loved ones and friends. I know that the whole House will join me in sending our deepest condolences and sympathy to the families of these brave men and to their comrades.
	Yesterday's elections in Iraq demonstrated the vital importance of what those service personnel and thousands of other brave British servicemen and women have been helping to achieve in Iraq. Only two years ago, Iraq was still under the sway of one of the most ruthless dictators in the world. Dissent was punishable by torture and summary execution, with an estimated 300,000 people buried in mass graves during the period of Saddam's dictatorship. The last time that the Iraqi people voted was in the staged elections of Saddam's tyranny, with just one candidate—a man who had been flouting the will of the United Nations for 12 long years. Yesterday, in contrast, the elections took place in the implementation of the will of the United Nations, for it was the Security Council, in resolution 1546, that laid down the timetable and process for the elections and the steps that follow. Yesterday, the Iraqi people had a choice of not one candidate but 8,000 candidates for the new National Assembly, from 111 different political parties and entities, with 11,000 candidates in regional and Kurdish elections. I am delighted to say that one third of the candidates in the national elections were women.
	Although turnout figures will not be available for some days, it is already clear from initial estimates that a substantial proportion of the Iraqi population took part in the elections. Turnout appears to have been especially high in the north and south of the country, among both men and women. Turnout in Sunni majority areas was lower, mainly because of the high penetration of insurgents threatening to kill voters. However, in other areas where Sunni Arabs were able to vote freely, they appear to have done so in good numbers. Simon Collis, British consul-general in Basra, told me this afternoon that some 50 per cent. of Sunnis in that province may have voted. He described the extraordinary atmosphere in Basra, as families went out to vote, taking along their children dressed in their smartest festive clothing. Polling was also brisk in the mixed Sunni-Shi'a suburbs of Baghdad. In Mosul, extra polling stations had to be opened when turnout exceeded expectations.
	Yesterday's elections were monitored by some 22,000 domestic election observers, 33,000 party officials and some 120 international monitors accredited to the Independent Electoral Commission of Iraq. I arranged for three of the monitors to come from the House on an all-party basis, and my hon. Friend the Member for Forest of Dean (Diana Organ) and the hon. Members for Blaby (Mr. Robathan) and for Torridge and West Devon (Mr. Burnett) formed that delegation. My hon. Friend the Member for Cynon Valley (Ann Clwyd) also observed the elections, and Baroness Nicholson did so on behalf of the European Parliament.
	Electoral procedures are reported to have worked efficiently throughout the country. Jean-Pierre Kingsley, the Canadian head of the International Mission for Iraqi Elections, has described the election as a "very good process". I understand that my hon. Friend the Member for Forest of Dean—one of the three all-party observers from the House—has described arrangements in the town of Maysan as "model".
	I should like to pay tribute to the Independent Electoral Commission of Iraq and to its advisers from the United Nations—led by the quite exceptional international diplomat, Mr. Carlos Valenzuela—for their outstanding work in assisting the Iraqis and ensuring that yesterday's elections ran smoothly. I should also like to thank our ambassador, Edward Chaplin, and all our staff in Baghdad, Basra and Kirkuk for the excellent job that they do generally, but specifically in covering the elections.
	No one expected these first free elections in half a century to be perfect, but they went far better than many had anticipated, and they are all the more remarkable given the circumstances in which they were held. We have grown used to insurgents in Iraq who attack any and every group and organisation that is working to rebuild the country. The Iraqi people most of all have suffered from that terrorist violence, and the insurgents had made it clear that they would use the vilest means possible to stop yesterday's elections running smoothly or at all. Abu Mussab al-Zarqawi, a leader of the insurgency in Iraq, declared last week that democracy was an "evil principle". He and his henchmen—many, like him, are not Iraqis themselves—sent suicide bombers to attack polling stations and other areas associated with the elections, with the message, "If you vote, you die."
	Yesterday's elections, by contrast, represent a real blow to that disgusting campaign of violence and intimidation. In Sadr City in Baghdad, for example, a mortar attack at a polling station in a local school left a number of people wounded. However, multinational force troops at the site report that people simply helped the wounded and then, along with those who could do so, rejoined the queue to vote. In Sunni areas in central Iraq, large groups of people defied terrorist intimidation and walked several kilometres to polling stations to cast their votes. Those elections were a moving demonstration that democracy and freedom are universal values to which people everywhere aspire.
	The fact that not a single suicide bomber managed to get through the security cordons around polling stations is a great tribute to the bravery and effectiveness of Iraq's own security forces, who were in the front line. I pay tribute to them, and to the troops of the UN-mandated multinational force, who helped to maintain security around the polling stations. Several policemen were killed when suicide bombers who were unable to get through their rigorous searches simply blew themselves up. Our thoughts are with their families and those of all the Iraqis who lost their lives in yesterday's violence.
	As Iraq's interim Prime Minister, Dr. Ayad Allawi, said this morning:
	"There will still be violence, but the terrorists now know that they cannot win".
	We have seen the determination of the Iraqi people to participate in building a more secure and democratic future for their country, and we now need to support them as they continue that process. The Independent Electoral Commission for Iraq expects to publish the results of the election within 10 days, and to certify those results by 20 February.
	Yesterday's elections were for a Transitional National Assembly of 275 members, who are elected on a wholly proportional system. The TNA's first task will be to elect a three-person presidency, which will in turn appoint a Prime Minister and Cabinet, which the TNA will be asked to approve. This Iraqi Transitional Government will then be sworn in and the Interim Government will dissolve, and we expect that to have taken place by the end of February. As UN Secretary-General Kofi Annan has said,
	"the success of these elections augurs well for the transition process".
	The new Assembly will then begin work on the next stage of the political process in Iraq—the drafting of a permanent constitution for Iraq—as set out in Security Council resolution 1546. Many Iraqi political and religious leaders, including Ayatollah Sistani, have made clear their wish to include Sunni groups in that process. I welcome Prime Minister Allawi's call earlier today for a
	"new national dialogue that guarantees that all Iraqis have a voice in the next government".
	There is also an important safeguard for both the Sunni and Kurdish minorities in the transitional administrative law, under whose terms the constitution must be approved: the constitution must receive an absolute majority of votes in a referendum and, in addition, it can be blocked by two thirds of voters in any three of the country's 18 provinces.
	The United Kingdom will continue to offer every support to the political process in Iraq as set out by the United Nations, working with our international partners including through the European Union. We shall seek an early meeting of the Sharm-el-Sheik group of Iraq's neighbours and G8 countries to build on international support for Iraq. We will continue to work for a central role for the UN in supporting the political process.
	The House knows that there have been deep divisions over Iraq policy in the past two years, but this election should unite us all. Yesterday, the Iraqi people in their millions showed their wish to embrace freedom and to shape the future destiny of their country. I know that the whole House and our country stand behind them as they pursue that historic endeavour.

Michael Ancram: May I thank the Foreign Secretary for his statement and for giving me advance sight of it?
	On behalf of Conservative Members, I join the Foreign Secretary in his expressions of sorrow at the crash of the RAF C-130 Hercules north of Baghdad yesterday. Our thoughts and prayers are very much with the families of those who have died in this incident. In Iraq, we have asked a lot of the dedication and professionalism of our armed forces, who have responded magnificently, and I pay tribute to those who have given their lives.
	Obviously, we must await the outcome of inquiries into the cause of the crash. Those planes, as I personally know, have a good safety record and are flown with the greatest professionalism. If there is any evidence that that crash was caused by hostile action, the Government will have many further questions to address. Can we be assured that the Foreign Secretary or the Defence Secretary will keep the House informed?
	In the meantime, there are certain questions which I hope the Foreign Secretary will answer now. Why was this plane flying to Balad? Is that a routine run for RAF C-130s, as is the regular flight from Basra to Baghdad? Has the whole site of the crash now been fully secured? We are told that an Australian airman was killed in the crash. Were any Americans involved?
	On yesterday's elections, may I join the Foreign Secretary in his warm words of praise for the way in which they were conducted, and for the courageous way in which the Iraqi people responded? The turnout and level of participation, even in the face of the gravest terrorist threats and violent intimidation, were not only encouraging but proved the doom merchants wrong. At the suggested 60 per cent. overall, the turnout would be a little higher than in our last general election, which should give us food for thought.
	On terrorist intimidation, I see that interim Prime Minister Allawi announced today that seven foreign nationals had been held in relation to election day attacks. Are there any indications as to which countries those seven came from?
	While the vote was a major blow for freedom and democracy and against tyranny and terrorist intimidation, is not the key to its longer-term success the breadth of the turnout in all parts of Iraq and across the various ethnic and sectarian divides? I see from the reported remarks of the UN's Carlos Valenzuela that higher numbers of Sunnis than expected turned out to vote, and that in the former rebel stronghold of Falluja queues were seen forming outside polling stations. Is not that a welcome vindication of the anti-insurgency action taken by multinational forces in rebel areas over recent months? And was it not encouraging that, in most areas, Iraqi forces took the lead in providing the necessary security to allow the poll to proceed? I, too, pay tribute to them for that.
	Now we must look to the future. The new Transitional National Assembly and Government will now draw up, as we have heard, a constitution to put to the people in a referendum later this year. Does the Foreign Secretary agree that all elements of Iraqi society must be involved in the drawing up of that constitution if they are to feel a sense of ownership in it? What steps will be taken to ensure that, even where low turnout or boycott have caused under-representation of certain crucial elements in the new Assembly, those elements can still become part of the constitution-formulating process? Looking further to the future, can the Foreign Secretary comment on the words of Iraqi interim Interior Minister Falah al-Nakib yesterday:
	"I think we will not need the foreign forces in this country within 18 months"?
	How does such a time estimate fit with the current rate at which effective Iraqi security forces are being trained and commissioned?
	Can the Foreign Secretary comment on the extraordinary reports today that since the war almost $9 billion of Iraqi oil revenue has gone missing from a fund specifically set up for Iraq reconstruction, and that mismanagement by the coalition provisional authority was to blame? I am sure that he will agree that that is a most serious allegation. What steps are he and his Department taking to follow this up?
	Yesterday's elections are a positive step towards a stable and democratic Iraq, which has been the long-standing goal of all of us who supported the war. Of course one poll does not deliver democracy; indeed, sometimes in history it has delivered the opposite. Yesterday's vote, however, was good for Iraq, the middle east and freedom. For that we must all be thankful. Our hope must now be that it will set the path for wider peace and harmony throughout that troubled region.

Jack Straw: I am grateful to the right hon. and learned Gentleman for his remarks. He asks me essentially to speculate about the causes of the crash yesterday. With respect, I would rather not do so. A board of inquiry has been established, and it is appropriate that it should deal with the causes.
	The right hon. and learned Gentleman makes a very good point about turnout. We do not know what the turnout will be, but if it is at or above 60 per cent., then on the basis on which Members are in this House it must be a highly legitimate election.
	The right hon. and learned Gentleman asks about the number of foreign nationals who may have been held by Iraqi security forces. I am afraid that I have no further information about them.
	The right hon. and learned Gentleman raises an important point about how inclusive the process of forming the Transitional Government will be. It will be very inclusive and, as I pointed out, Ayatollah Sistani, who represents a substantial part of the Shi'a majority, has made that clear. There are protections for both the Sunni and the Kurdish minorities, as I have spelled out, but it is also worth bearing it in mind that even if, as a result of a lower Sunni turnout, the Sunnis have fewer members in the Transitional National Assembly than their population would suggest, it would be open to the government's appointing panel to appoint Sunnis to the government, because it is not a requirement that members of the Iraqi Government be members of the TNA.
	The mandate for the multinational force—it of course includes the British force—was established in resolution 1546, which states that the mandate will be reviewed in June this year and will terminate, unless extended by a further Security Council resolution, this December. Meanwhile, as the Iraqi Interior Minister implied, the question of whether foreign forces should be on Iraqi soil is entirely a matter for the Iraqis themselves. I heard Dr. Shaikhly, the Iraqi ambassador to the United Kingdom, say yesterday on the BBC that this election could not have taken place but for the presence of the multinational force of the United States, the United Kingdom and other contributor forces to the coalition. We proved yesterday that it is there not as an army of occupation, but as a force for democracy by, for and of the Iraqis. We will only stay there as long as we are needed, but how long that is depends almost entirely on how quickly the Iraqis' own forces can be built up. However, yesterday's experience was a good one in terms of their ability to deal with such matters.
	I have no further information concerning reports of missing oil money, but we are actively looking into the situation.

Menzies Campbell: May I associate my right hon. and hon. Friends with the expressions of sympathy with which the Foreign Secretary began his statement, and express our regret at the loss of life? I have no detailed questions to ask the Foreign Secretary about the circumstances of the crash; I am content to wait until the Government feel able to release such details as are appropriate.
	It would be churlish not to salute the courage of the ordinary citizens of Iraq who have voted in such numbers; nor would it be right to complain if the British Government felt a moment of satisfaction—even relief—at the fact that the election has taken place with such success. The Foreign Secretary will doubtless agree, however, that this is no time for triumphalism, and we would do well to accept Kofi Annan's sober judgment that this is merely the beginning. May I therefore ask the Foreign Secretary what steps can be taken to strengthen and improve the quality of the Iraqi security forces? What practical steps can be taken to ensure that the political process now set in motion will be as inclusive and representative of all opinions as he, the shadow Foreign Secretary and I consider desirable? What steps can be taken to improve delivery of public services such as water, sanitation and electricity, and to deal with unemployment?
	The Foreign Secretary knows that my colleagues and I were opposed to military action, but we have accepted the moral obligation that that action imposed on us all. However, that commitment cannot be open-ended. The United Nations' mandate is due to expire at the end of 2005. Should not United Kingdom forces be withdrawn by then?

Jack Straw: I am grateful to the right hon. and learned Gentleman for his expression of sympathy and condolences concerning the victims of yesterday's crash of a C-130 Hercules.
	I understand the position in which the right hon. and learned Gentleman finds himself, but I should point out that there is no question of "triumphalism". No one feels triumphal about what has happened in Iraq, but there is a great sense of relief. I should also point out as gently as possible that we all have to bear responsibility for the consequences of our own actions. Some of us in all parts of the House—a majority—decided on a course of action on 18 March 2003 that has caused much heart-searching. It meant that each of us individually, as well as collectively, has come under a huge amount of criticism, and in some cases much worse. We all made that decision because we felt that it was the right decision and that the outcome, however difficult, would be to produce a better Iraq than that which had gone before. So it has turned out. We now have the beginnings of a democratic Iraq. No one can gainsay what happened yesterday, which we have seen with our own eyes and through the eyes of observers.
	I say to the right hon. and learned Gentleman, whose party has made so much of the position that it took in respect of Iraq, that the consequence of the decision that his party took was that there would be no democratic elections in Iraq. Saddam would still be in power, and the only elections that would have taken place in Iraq would have been a continuation of those ruthless elections in which the only issue was whether the leading candidate—the only candidate—got 99 or 100 per cent. of the vote. We bear responsibility for our actions, including the loss of life of British soldiers that has taken place. The right hon. and learned Gentleman's party bears responsibility for the strategy that he and his colleagues resolutely pursued, which, whatever their good reasons, had the consequence, whether intended or inadvertent, of keeping Saddam in power and crushing the very idea of democracy in Iraq. The British people can make their own judgment about that.
	Let me answer the other two questions that the right hon. and learned Gentleman raised. He asked what we are doing about water, sanitation and so on. We are doing everything we can. My right hon. Friend the Secretary of State for International Development is present. He and his Department have been indefatigable in pursuing the aid and reconstruction programme, along with other international partners. The one thing that has set back the reconstruction and rehabilitation of Iraq has been the terrorism. That is why we must have our multinational forces—British forces, United States forces and forces from other countries—as long as the Iraqi forces cannot cope themselves.
	The right hon. and learned Gentleman says we should make a commitment to withdraw our forces by the end of the year. If we were to decide that now, in advance of knowing what the security situation will be, we would be going back to the situation that his party wanted, where the forces of democracy are weakened and the forces of tyranny are strengthened. It would be utterly irresponsible for the House or the Government to make a premature decision about the withdrawal of British and other forces.
	It is for the Iraqis themselves to make that judgment. If the Iraqi Government were to say today that our mandate had ended, we would leave tomorrow, but so far they have said, and we all understand this, that they do not like the idea of foreign forces on their soil—nobody does—but they understand fully that without foreign forces on their soil for a period, they cannot rebuild their country and create the freedom, security and democracy that they so desperately need.

Donald Anderson: For many of us, the enthusiasm that we saw yesterday in many parts of Iraq reminded us of the post-liberation election in South Africa in 1994. Is it not ironic, however, that a blocking mechanism on the constitution—two thirds of the electorate in three provinces—which was designed to protect the Kurds, may, unless we are careful, be used by Sunni elements if they feel excluded from the process? So is there not now a very strong incentive to ensure that the Sunni elements who, often for good patriotic reasons, stayed outside the elections are brought within the big tent and feel part of the process?
	Even though I agree that it would be wholly premature to give a date now for withdrawal, if we accept that the new Government are in the driving seat, should we not reconsider with them a staged withdrawal, province by province, to show that they are indeed in charge?

Jack Straw: It showed great foresight when the drafters of the transitional administrative law put in the mechanism allowing a two-thirds vote in three of the provinces to block the constitution. It was originally put in as a protection for the Kurds, but is there now as a protection for the Sunni as well. All of us understand the apprehension of perfectly decent Sunni about whether they will be excluded from the political process, but it is the determination not only of us, but especially of the Iraqis, that that should not be the case, and there are mechanisms ensuring that it is not. On a timetable, the point is premature. Resolution 1546 lays down a clear timetable for review and termination of the mandate at the end of this year, unless it is renewed. It will be renewed only if the Iraqis themselves plainly ask for it, but they may well do so, because their own forces may not be fully ready.

James Gray: The profound sympathy of the Foreign Secretary and the whole House will be much welcomed by my constituents at RAF Lyneham, who have so tragically lost nine of their number, although the healing of their hearts and of the surrounding communities will take a very long time indeed. I hope that that process will be helped by the knowledge that the sheer professionalism, determination and guts of the men and women of RAF Lyneham have made such a significant contribution to the successful elections yesterday. I hope that, through their grief, they will realise that their men have made some contribution to restoring democracy and peace in Iraq.

Jack Straw: I would be grateful if the hon. Gentleman passed on directly to the families concerned and all those on the base our profound condolences and those of the whole House for what has happened. He speaks of their sheer professionalism. I have had the privilege of flying in a C-130 Hercules, as a number of hon. Members have, and of seeing their astonishing professionalism, including, for example, in tactical flying at between 100 and 150 ft, lower than most helicopters, where they will normally fly at speed for kilometre after kilometre in that dangerous territory of Iraq. Without their bravery and professionalism, we would not have been able to do the job that we have done, culminating at this stage in the elections that went so well yesterday. It is of little comfort, but maybe some solace for the families concerned, that those who died did so for a very great cause.

Ross Cranston: A tragic shadow is cast by the death of our servicemen, but my right hon. Friend was absolutely right to enthuse about the response of Iraqis to democracy, which certainly puts paid to what a number of the doubting Thomases in this country have been peddling. In terms of the next stage under resolution 1546, does he think that there is any mileage in making available the UK experience with devolution as one way of accommodating both the Kurds and the Sunnis?

Jack Straw: The Iraqis have available to them a wide variety of experience of setting up federal or quasi-federal constitutions. Our experience is quite important, as we have produced an asymmetrical arrangement, and yet it is one that is working well. Also available are the experiences in Switzerland and Belgium, which are regarded as classics of their kind in terms of maintaining a federal structure and a unified country with a high level of devolution. We will certainly ensure that that experience is made available.

William Hague: Does the Foreign Secretary have any new information that he can give the House about the trial of Saddam Hussein, which will presumably be an appropriate way in which to build on the hopes for freedom engendered yesterday? More disturbingly, does he accept and will he convey to the Ministry of Defence that great distress was caused yesterday to relatives of servicemen flying Hercules aircraft in Iraq, including some living in my constituency, when news was given out of a specific type of aircraft coming down, but before the next of kin were informed? Would it not be wise to do everything possible, while recognising the immense operational difficulties involved, to minimise the time interval between news of a specific aircraft coming down and the informing of next of kin, so that those whose relatives are safe can at least sleep more easily?

Jack Straw: I have no further information as I stand here about the trial of Saddam Hussein, but I will write to the right hon. Gentleman and place a copy of my letter in the Library. I shall certainly raise the points that he has made with my right hon. Friend the Secretary of State for Defence. Having spoken to the Minister of State, Ministry of Defence, and the Under-Secretary of State for Defence, I can say that my colleagues are very well aware of the necessity wherever possible to inform next of kin before any publicity is given. I understand—this is only my understanding—that the reports about the crash were made by news outlets initially and not by the Ministry of Defence. We live in a kind of global goldfish bowl, which has some advantages, but many disadvantages in circumstances such as these.

Robin Cook: May I join my right hon. Friend in saluting the courage of those millions of Iraqis who went to the polls despite the grim security situation in that country and may I associate myself with his congratulations to our ambassador, Edward Chaplin, and his staff for the difficult and delicate task that they have had to perform on behalf of our country?
	Does my right hon. Friend agree that now that the forces of democracy have been released in Iraq, there is an obligation on us to listen to the demands of the newly elected representatives? Will he confirm that the great majority of the parties standing in yesterday's elections stood on a mandate for negotiation to end the occupation? Is my right hon. Friend sensitive to the fact that if we want to achieve a constructive and positive partnership with the new Assembly, we must convince it and the Iraqi public that we have a clear perspective for withdrawal within a realistic time line?

Jack Straw: I am grateful to my right hon. Friend for his salute to the Iraqis' courage and for his congratulations to the ambassador in Baghdad, Edward Chaplin, and his colleagues. My right hon. Friend knows those people, and their skill and professionalism, very well.
	Of course, we have an obligation not only to listen to the elected representatives of the new Transitional Government, but to do what they say in respect of the future of the multinational force. Frankly, an issue about ending the occupation does not arise. In terms of its legal and practical effect, the occupation ended with the passage of resolution 1546. Since then, the multinational force has been there at the invitation, and only at the invitation, of the Interim Iraqi Government, who are now to be the Transitional Government. Of course, one item on that Government's agenda will be when they want us to go, but we have had no indication that any serious and responsible Iraqi politicians want us to go before our job is done. The moment they do so—it is their judgment, not ours—we will go.

Patrick Cormack: In thanking the Foreign Secretary for what he just said and for the tone and content of his statement, will he take an early opportunity to talk to his new counterpart, when he or she is appointed, to make it plain that the British Government will make no unilateral commitment of any sort other than to stand by the democratically elected Government of Iraq and the principles on which they were elected?

Jack Straw: Indeed we shall.

Joyce Quin: I welcome my right hon. Friend's statement as a huge step forward for Iraq. While our thoughts are rightly with the British victims of the Hercules crash, he will be aware that in recent months a number of young Iraqi army recruits and policemen have been killed by terrorists and insurgents, even during the election period. Will the Government take the opportunity to pay tribute to those people and, alongside the new Iraqi Government, to look at ways of helping their bereaved families?

Jack Straw: We do pay tribute to their great bravery. Notwithstanding the level of casualties that the Iraqi army and other security forces have suffered, I am pleased to say that recruitment levels are high and morale is improving. It is clear that the success of the Iraqi forces yesterday will help to defeat terrorism in the months ahead and to raise the morale of those forces.

John Maples: The manner in which yesterday's elections appear to have been conducted is the best news to have come out of Iraq for a very long time, but it remains to be seen whether it improves the security situation. I rather doubt that that will be so in the short term, but, as more and more Iraqis show their support for the Government that they have elected, perhaps support for the terrorists will decline.
	The Foreign Secretary said that the presence of allied forces is an essential part of that security operation. However, although they are part of the solution, they are also part of the problem in that they are often a target and make it difficult for Iraqi security forces to operate because they are often seen, wrongly, as being the proxy for American and British forces. At some point, the Iraqis must take over responsibility for their own security. I suggest that that will be easier in the absence of allied forces, who are perhaps seen as pulling the strings, and that he should consider not keeping our forces there for long after the elections at the end of this year on the basis of the new constitution.

Jack Straw: I anticipate that the security situation will remain difficult for some time but it is also clear that the fact that elections took place and the Iraqi people's overwhelming endorsement of the democratic process will weaken support for the terrorists and greatly help stability and security in the medium and long term.
	As I said earlier, the timetable for the presence of a multinational force including the United Kingdom is clearly set out in resolution 1546 and that is the basis of our remaining there.

Robert Marshall-Andrews: Does the Foreign Secretary accept that many who actively campaigned against Saddam Hussein years before he invaded Kuwait and also opposed the invasion of Iraq because they believed that the prospectus was false can none the less acknowledge success with the generosity of spirit that it deserves? Does he also accept that many questions remain unanswered and many concerns have not yet been tackled, not least a genuine audit of the number of Iraqi civilians who have been killed, including in Falluja, during the war and the occupation?

Jack Straw: I understand the basis of my hon. and learned Friend's initial comments. When I made the point about the consequences of people's actions, I did not say that people wished Saddam to remain in Iraq. It simply happens to be an obvious fact that a consequence—intended or unintended—of failing to vote for military action on 18 March is that Saddam would still have been there and the elections would not have happened.
	I gave a full written ministerial statement about casualty figures in the autumn. I am happy to send my hon. and learned Friend a copy. The most reliable figures that are now issued come from the Iraqi Ministry of Health, although there are serious methodological difficulties about their categorisation—as some being caused by terrorists and others by the security forces. However, those figures appear to be the more reliable. The figures that The Lancet suggested, which range from 8,000 to 194,000—there was never an estimate of 100,000—need to be treated with the greatest scepticism.

Simon Thomas: Does the Foreign Secretary accept that many of those who voted against the war in March voted for pursuing action through the United Nations in the earlier vote in February? A key matter is that the action was not taken legally within a United Nations framework. I accept the success of the elections, which were conducted through the United Nations thus demonstrating what it can achieve when supported internationally. Will the right hon. Gentleman ascertain what the United Nations can achieve in Iran as well as in Iraq?

Jack Straw: To repeat the point, at the moment of decision, which was not February 2003 but 18 March 2003, the possibility of weakening Saddam through sanctions was not available. Everybody knows that. The choice before the House at the point of decision was between taking military action or walking away, with the consequence that sanctions would have degraded and Saddam would have re-emerged, strengthened and much emboldened. A majority in the House made one choice, others, including Plaid Cymru, made another. We take responsibility for our choice; the hon. Gentleman must take responsibility for his. It is an indelible fact that the consequences of the Liberal Democrat, Scottish nationalist and Welsh nationalist policy would have been that Saddam, an undemocratic tyrant, would still be there and there would have been no elections yesterday. Those parties must understand that.

David Winnick: Following that, do not those who say that they were always against Saddam's tyranny have a responsibility to tell us how that tyranny could have been destroyed without military action, and how genuine democratic elections could have taken place without the intervention of the occupying forces nearly two years ago? On the occupation, would it not be wise for all the Governments involved, including the British Government, regularly to review the position, for obvious reasons?

Jack Straw: Of course I accept what my hon. Friend said at the outset. Those who willed the end had a responsibility to will the means, but they failed to do so. I have set out the timetable for the review of the mandate of the multinational force, and I believe that it would be most appropriate, certainly for the British Government, to stick to the timetable in resolution 1546.

John Wilkinson: I associate myself with the most moving tributes paid by the Foreign Secretary and by my hon. Friend the Member for North Wiltshire (Mr. Gray) regarding the tragic loss of the C-130 Hercules crew yesterday. I am most appreciative of the unsung heroes of the Royal Air Force's air transport force, who, in war, emergency and times of humanitarian catastrophe, fly in the most demanding circumstances at great personal risk. May I ask the Foreign Secretary to look forward to the time when Iraq is an established democracy born of the common sacrifice of British and Iraqi security personnel, and to make an investment in the training of such personnel at British training schools such as Sandhurst, so that, over the months and years ahead, we can more fully build a peaceful future for Iraq?

Jack Straw: I associate myself entirely with the hon. Gentleman's opening remarks. I understand from the Minister of State, Ministry of Defence that there will indeed be offers from the British Government of such support and training for the Iraqi national forces.

Tom Levitt: After months of reporting and comment that can only be described as selective, will my right hon. Friend pass on to those elements of the British media that appear to have had a change of heart in the past 72 hours our polite and respectful thanks for having acknowledged that it was right to go ahead with the election, that it was a success and that the seeds of hope in Iraq have not only been sown but are germinating?

Jack Straw: Yes, of course I will, but I think that those people might be coming to that conclusion themselves.

Hugh Robertson: The shadow Foreign Secretary mentioned that a number of foreign nationals had been detained in connection with offences against the election yesterday. What preliminary assessment has been received from our embassies in Damascus and Tehran of the reaction of the regimes in Syria and Iran to yesterday's election? How does the Foreign Office think that the election will affect relations between those two countries and Iraq?

Jack Straw: I am afraid that I have not seen any preliminary assessments from our posts in Damascus and Tehran, but I will be happy to write to the hon. Gentleman when I have done so. The Iranian Government have been supportive of the process; it is a majority of the people we might call their compatriots, the Shi'a, who in one sense stand to gain the most from the elections. I am not clear about the position of the Damascus Government, but we have looked to both Governments to ensure that they do not interfere in the internal processes of Iraq.

Tam Dalyell: Is it not an awkward and unpalatable reality that Kurds went into the polling booths yesterday and voted in their tens of thousands for parties that had promised not a federal Kurdistan, let alone a Kurdistan integrated into Iraq, but a separate Kurdish state? What is the attitude of our Government towards possible demands for the break-up of the Iraqi nation, given the difficulties that might result if the Iraqi Kurds were to be associated with the Kurds in Turkey and Iran?

Jack Straw: My hon. Friend is very experienced in having to deal with secessionist nationalist parties that have completely unrealistic objectives such as the break- up of a sovereign state. The way to deal with such a situation is the one that, sensibly, we have in this country.
	I can reassure my hon. Friend about the way in which we are dealing with those secessionist tendencies. Like every previous relevant Security Council resolution, resolution 1546 reaffirms the territorial integrity of Iraq—its existing borders. Democracy is about giving people freedom—freedom to argue for any cause that they wish to support—and that is what these people have done. International borders, however, cannot be rewritten by any political party of any one country, and they will not be in this case. The future of Iraq's constitution must lie within the existing international borders.

Jeremy Corbyn: I thank the Foreign Secretary for his statement. Obviously one wishes Iraq a peaceful future, and he rightly mentioned all the hundreds of thousands who died under the Ba'athist regime in the past. However, in answering the questions from my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) and my right hon. Friend the Member for Gateshead, East and Washington, West (Joyce Quin), he did not make clear exactly what was the estimated number of casualties in Iraq since the invasion. How many died in Falluja? Indeed, how many tens of thousands of people who are resident in Falluja have been denied the right to return to their own city, and are living in camps under some form of control? Surely, if we are to have openness and transparency, we need to know what estimates his Department and the Ministry of Defence hold of exactly how many people have perished since the invasion.

Jack Straw: I published a very detailed written ministerial statement in, I think, October, and I will send my hon. Friend a copy.
	My hon. Friend speaks as if the casualties that have arisen since the end of the major military action in April 2003 had somehow just happened. The only reason they happened was action by the terrorists. I look forward to the moment when my hon. Friend decides to condemn those terrorists. They are the people who have been doing the killing, and in the many provinces where there has been no terrorism there has been no killing. I think the moral of that is very clear.

Colin Challen: The process of the election has indeed been very successful, and I think we can all welcome that, but whether the election has been successful per se is for history to judge, perhaps three or four years down the line.
	Does my right hon. Friend agree that transparency must be at the heart of this? We want to avoid suggestions like those that were made after the Ukrainian elections, when it was said—perhaps erroneously—that western political participation funds had been used in a very partisan way. Should not the way in which the £5 million that the Government contributed to the Iraqi political participation fund was disbursed be published, so that everyone can see that it was given out fairly?

Jack Straw: All the political parties in Iraq were operating under the Iraqi election law, and under the auspices of the Independent Electoral Commission for Iraq.
	I am afraid that we must make a judgment about the elections not in three or four years' time but, as we make judgments about our own elections, when the results appear and, in this case, when the observers' findings appear. What we know now is that the turnout was much higher than expected, and the evidence so far suggests that the incidence of electoral abuse was much lower than expected. The legitimacy of the elections is therefore likely to be much greater than expected, and that should be a cause for great celebration.

Karen Buck: Will my right hon. Friend also pay tribute to the Iraqis in Britain who took part in the election activity over the weekend? Admittedly they did not have to demonstrate their physical courage like millions of Iraqis in Iraq, but they demonstrated their courage over decades, in many ways, when they were persecuted into exile by Saddam Hussein. Friends of mine were working on the election over the weekend, and I can testify to their passionate commitment to the democratic process.
	Does my right hon. Friend agree that the politics of the diaspora are important here, as elsewhere? Will he do what he can to build on the connections, and ensure that Britain's Iraqi community feel able to be involved, in whatever way possible, in building and deepening democracy in Iraq?

Jack Straw: Yes to the first question, and yes, very much, to the second.

Kevan Jones: Does my right hon. Friend agree that an important task for us all now is to support the brave men and women who were elected to the Assembly yesterday? When I visited Basra in December with other members of the Defence Committee, one of the points made by the provincial governor and council was that to travel to the United Kingdom they had to journey to Baghdad for travel documents. Will my right hon. Friend look at providing further facilities to our excellent consulate in Basra, where Simon Collis is consul-general, so that individuals who want to come to this country do not have to travel to Baghdad to get the documents and can have them issued in Basra?

Jack Straw: My hon. Friend raises a fair point and I will certainly look at it.

Harry Barnes: We will have to wait only a short while before the new Iraqi Government and the new Iraqi Parliament express their views about the withdrawal of troops. I hope that, however uncomfortable their decision is, considered from different points of view, it is accepted and acted upon because it will be a democratic decision.
	Is my right hon. Friend aware that many commentators are saying that this is the most democratic election in Iraq for 50 years? I was there 50 years ago and it was a feudal monarchical regime that merely had a democratic cover. These are the most democratic elections that have ever been held in the history of Iraq, imperfect as they are and despite all the difficulties that are associated with them. That is an extra reason why we should accept the decisions made by the new Iraqi Government and the new Iraqi Parliament.

Jack Straw: My hon. Friend's intervention speaks for itself and shows the wisdom of his age and of British national service.

Harry Cohen: While the people were courageous, is not the reality that this was an election but not as we know it? No press were allowed, for example, in Falluja. The Independent Electoral Commission of Iraq was not independent. It was appointed not by Iraqis but by Paul Bremer. However, if the election does have legitimacy, as the Secretary of State says, and if the coalition around Ayatollah Ali Sistani wins, as is expected, will not most Iraqis have voted for a timetable for the foreign troops to leave? If so, should not those foreign countries, us and the United States, respect that decision in the name of freedom and democracy and set that timetable to leave?

Jack Straw: I say gently to my hon. Friend that I am surprised at his discomfort about the excellent result of the election. I have already spelt out that there is widespread acknowledgment that it has gone much better than expected. It is simply untrue that the Independent Electoral Commission of Iraq was appointed by Paul Bremer. It was endorsed by the United Nations and is working under the auspices of the United Nations special representative in respect of elections, Carlos Valenzuela, and the authority laid down in resolution 1546. The degree of scrutiny and external supervision of the elections, including 55,000 internal observers in Iraq and 120 foreign observers, indicates the quality of the elections in the special and very difficult circumstances of Iraq itself.

Constitutional Reform Bill [Lords] (Programme) (No. 2)

4.28 pm

Christopher Leslie: I beg to move,
	That the Programme Order of 17th January 2005 in relation to the Constitutional Reform Bill [Lords] be amended as follows:
	1.   For paragraphs 1, 2 and 3(1) there shall be substituted the following—
	  '1.   The Bill shall be committed to a Committee of the whole House.
	  2.   Proceedings in the Committee, any proceedings on consideration and proceedings on Third Reading shall be completed in three days.
	  3.—(1)   The following shall apply to proceedings in the Committee.'
	2.   In the Table, at the end there shall be inserted—
	
		
			  
			 'Proceedings Time for conclusion of proceedings 
			 Third day   
			 Clauses Nos. 8 to 10, Schedule No. 1, Clause No. 11, Schedule No. 2, Clause No. 12, Schedule No. 3, Clause No. 13, Schedule No. 4, Clauses Nos. 14 and 15, Schedule No. 5, Clause No. 16, Schedule No. 6, Clauses Nos. 17 to 19, any remaining new Clauses relating to Part 2, any new Schedules relating to Part 2, Clauses Nos. 22 and 23, Schedule No. 7, Clauses Nos. 24 to 36 and 38 to 53, Schedule No. 9, Clause No. 54, any remaining new Clauses relating to Part 3, any new Schedules relating to Part 3, Clause No. 55, Schedule No. 10, Clause No. 56, Schedule No. 11, Clauses Nos. 57 to 74, Schedule No. 12, Clauses Nos. 75 to 93 and 96 to 104, any new Clauses relating to Part 4, any new Schedules relating to Part 4, Clause No. 110, Schedule No. 13, Clauses Nos. 111 to 117, Schedule No. 14, Clause No. 118, Schedule No. 15, Clauses Nos. 119 to 121, remaining new Clauses, remaining new Schedules, remaining proceedings on the Bill Five hours after the commencement of proceedings on the Bill' 
		
	
	3.   For paragraphs 4 to 7 there shall be substituted—
	  '4.—(1)   This paragraph applies to any proceedings on consideration and proceedings on Third Reading (together referred to as "remaining proceedings").
	  (2)   Remaining proceedings shall (so far as not previously concluded) be brought to a conclusion—
	(a)   at the moment of interruption on the third day, or
	(b)   one and a half hours after the commencement of remaining proceedings,
	whichever is the later.'
	Following the comments made by some hon. Members during the Second Reading debate on the Bill on 17 January, the Government and Opposition have had further discussions through the usual channels and agreed to change the programming of the Bill. The motion will allow the entire Committee stage to take place on the Floor of the House, rather than some of the Bill's constituent parts being debated upstairs in Committee. The third day will now consist of the remaining proceedings in Committee, followed by proceedings on consideration and Third Reading. Many hon. Members expressed the view that that was a more appropriate arrangement. They prefer to see this constitutional matter taken through completely on the Floor of the House.
	I am happy to compromise and make that change and I hope that we can move on to the debate proper.

Oliver Heald: I thank the Minister, as I did the Leader of the House, for agreeing that all stages of this Bill, which is of high importance, should take place on the Floor of the House. I am glad that it has been possible to reach agreement. It is an important convention of the House that goes back to 1945. Its genesis lies in the comments of Herbert Morrison to the Procedure Committee. In those circumstances, I am pleased that the convention will continue and that this important Bill will be debated on the Floor of the House.

Paul Tyler: We, too, welcome the Government's change of heart; it would be churlish not to do so. On both sides of the House, we recognise that the Bill is an important measure and I believe that there is a now a broad sweep of agreement on many of its provisions, but that is not to deny the fact that it is useful, on constitutional matters, to decide the issues on the Floor of the House in line with the convention. I am not a particularly conventional Member and I hope that we can make speedy progress on the Bill. The sooner it reaches the statute book, the better.

Patrick Cormack: I briefly add my thanks as one of the Members who was particularly angry that the Bill was not to be taken on the Floor of the House. I would say to the Minister, in the same spirit of constructive conciliation, that it is a pretty tight timetable—today, tomorrow and on the third day. I hope that the Government will take note of that and, if necessary, introduce a supplementary motion.

William Cash: Although I am glad that we are taking these proceedings on the Floor of the House, I have to say that the time allotted is absurd, given the depth of the issues involved. I believe that we will end up finding it increasingly difficult to get to the bottom of many of the issues of constitutional supremacy, which many people would like to be buried at the bottom of the sea.

Edward Garnier: I am delighted that the Government have granted a third day on the Floor of the House, but I regret the fact that, with a Bill of such importance, only three days have been provided. It is a large Bill and it carries with it huge implications for the future of our country. I hope that the Government will allow further days of debate on the Bill; if we do not do a proper job here, it will have to be considered at greater length in the House of Lords.

Christopher Leslie: I hear what hon. Members are saying. We have moved a great deal on the main principle of the Committee stage, which has been widely welcomed. Only after we start the debate and find out how much progress is being made will we be in a position to judge whether the time allotted—always a matter of contention—was adequate for all hon. Members. The broad consensus is, I think, that it will be.
	Question put and agreed to.

Orders of the Day
	 — 
	Constitutional Reform Bill [Lords]
	 — 
	1st Allotted Day

(Clauses Nos. 1 to 7, 20, 21, 37, 94, 95 and 105 to 109, Schedule No. 8, any new Clauses amending section 12 of the Justice (Northern Ireland) Act 2002, and any new Clauses relating to matters connected with the Supreme Court of the United Kingdom as reserved or excepted matters under the Northern Ireland Act 1998).
	[Relevant Documents: First Report from the Constitutional Affairs Committee, Session 2003–04, HC 48 I and 48 II, on Judicial appointments and a Supreme Court (court of final appeal), and the Government's response thereto, Cm 6150; and the Third Report, Session 2004–05, HC 275 I and 275 II, on the Constitutional Reform Bill [Lords]: the Government's proposals]
	Considered in Committee.

[Sir Alan Haselhurst in the Chair.]

Clause 1
	 — 
	The rule of law

William Cash: I beg to move amendment No. 364, in clause 1, page 1, line 7, at end add—
	'(2)   In this section "the rule of law" means in particular the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying both that law and the common law.'.

The Chairman of Ways and Means: With this it will be convenient to discuss new clause 8—The rule of law (No. 2)—
	'(1)   Together with the sovereignty of Parliament, the rule of law shall continue to be a central principle of our constitution.
	(2)   The Lord Chancellor must use his best endeavours to ensure that the rule of law is respected.
	(3)   Nothing in this section shall make the duty of the Lord Chancellor under subsection (2) enforceable by law if it would not otherwise be so enforceable.'.

William Cash: These are very deep issues. In fact, we can say with confidence that the Constitutional Reform Bill, which opens "Part 1, Clause 1, The Rule of Law", is not an insignificant matter, to say the least.
	In dealing with clause 1, I have tried to achieve a definition of the rule of law. The Bill establishes duties and obligations, boldly asserting:
	"This Act does not adversely affect . . . the existing constitutional principle of the rule of law, or . . . the Lord Chancellor's existing constitutional role in relation to that principle".
	Bearing in mind the fact that there must be some profound reason behind the Government wanting to achieve this, I believe that we must have a proper definition of what the rule of law actually means. I have suggested that it should be defined as meaning
	"in particular the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying both that law and the common law."
	I have chosen the words carefully because of a House of Lords case in which Lord Bridge made an important judgment on what we can call the Grampian case. The wording that he gave and the wording that I have used vary slightly for a specific reason. He said that the rule of law was
	"the sovereignty of the Queen in Parliament in making law and the sovereignty of the Queen's courts in interpreting and applying the law".
	Far be it from me to do more than offer suggestions about how the definition might otherwise be worded, but I am moving the amendment because at the heart of the question of the interpretation of the sovereignty of the Queen in Parliament is the fundamental fact that it is down to judges to give effect to the statutes that are passed in the House. By using the words, "that law", and referring them back to statutes passed by the Queen in Parliament, I am saying that doing that is the prime duty of judges.
	There are rather esoteric cases about which it is said that judges might be given a jurisdiction in respect to the prerogative, but I disregard that for practical purposes. There is absolutely no doubt that the sovereignty of the Queen's courts extends to the common law. However, when we consider the interpretation of treaties, the key point is that only treaties that have been given statutory effect would fall under the parameters of my amendment.

Oliver Heald: Does my hon. Friend accept that in his attempt to define the rule of law, he is defining an element of it, rather than the complete territory covered by the expression? For example, the rule of law says that there should not be arbitrary use of power and that discretion should be conferred on a Government in a limited manner. Does he agree that he is attempting to define an important aspect of the rule of law?

William Cash: That is why the amendment includes the words, "in particular". My hon. Friend refers to the arbitrary use of power, but that would of course be dealt with under the rubric of the common law because that is the arena in which the judiciary rightly have not only sovereignty, but the right to intervene. One can immediately think of a series of common law remedies. With respect, I disagree with my hon. Friend's interpretation of my amendment because it does not leave anything out—it is inclusive. I am saying, however, that the specific reference to the words, "that law", refers back to treaties to which statute has given effect. We all know that treaties do not have any effect in domestic law unless they are implemented by statute, and the Bill would be greatly improved if it made that clear.

John Redwood: Does my hon. Friend accept that directly acting European law, such as a European regulation that did not require the express consent of, or translation by, Parliament, would still be covered by his doctrine, because it would emanate originally from the European Communities Act 1972?

William Cash: Absolutely. That is where we enter extremely deep territory. We shall come on to those questions a little later.
	The fact is that it is open to the UK Parliament, where it is prepared to do so, as a matter of political will that I think is well overdue, to express itself by statute inconsistently with the European Communities Act 1972. In McCarthy's v. Smith, Lord Denning, and in the case of the metric martyrs, Lord Justice Laws, made it crystal clear that judges are under an obligation to give effect to the latest, subsequent, inconsistent, clear and unambiguous enactment of the House.
	For reasons that I shall not go into at this point in the debate, serious doubts arise both in the context of the European constitution and also in relation to the question of judicial drift, where it is becoming increasingly clear that judges tend to regard a separate body of law as being somehow superior to that which is enacted in the House. Not only must that be stopped, it must be clearly dealt with in relation to Bills such as this. Indeed, I have tabled new clauses entitled "Supremacy of Parliament" in relation to both the European Communities Act 1972 and the Human Rights Act 1998.
	It is well established not only in McCarthys v. Smith and in the metric martyrs case that subsequent legislation passed by the House must be given effect by the judges but also in the context of the Human Rights Act, which I suspect is a matter of considerable concern to the Government at present. By passing that Act, despite my dire warnings and those of others as to what would happen, the Government have in fact found themselves in a considerable judicial or jurisdictional mess. Indeed, in the cases of Simms and O'Brien, as I said when I occupied my previous position on the Opposition Front Bench, Lord Hoffmann unequivocally stated that it was open to the British Parliament to legislate inconsistently with, or even to repeal, the Human Rights Act 1998. He said that if the Government did so, they would have to bear the political cost, but the bottom line is that it is open to Parliament to legislate, as I said in my previous capacity, with respect to both the European Communities Act 1972 and the Human Rights Act 1998, inconsistently with those enactments. It is the duty of judges to give effect to enactments providing that the enactments in question are clear and unambiguous.
	That is what I mean by the words "that law" in my amendment. The rule of law means the rule of law exercised by judges in interpreting statute law and the common law. It is unnecessary for me to go into further detail on that question, as I have made my position abundantly clear.

Edward Garnier: How does my hon. Friend's proposal in amendment No. 364, and the wording that he has been explaining, alter the current position?

William Cash: It is a clear statement of what is in my view the current position, with a proviso, although I would not want to appear pedantic. In the Grampian case, Lord Bridge stated the same proposition in slightly different wording. As I said when I moved the amendment, he has said that the rule of law means
	"the sovereignty of the Queen in Parliament in making law and the sovereignty of the Queen's courts in interpreting and applying the law".
	I say with the greatest respect to such a noble and learned judge that it might have been preferable to have made it clear that the law that was being applied was both that made by Parliament in statute and the common law. For reasons that we have discussed, that would have been a little more precise. I do not want to criticise anyone for having made a slightly shortened version of what I was saying, but I think that the amendment is an improvement.
	The question of the prerogative is separate. It is a matter of concern that treaties are made by prerogative and that there is an increasing tendency for those treaties, by judicial drift, to be given a greater status than they have in the context of the making of statute law. Treaties, including of course the European Community's treaties and other agreements such as the European convention on human rights, can have full effect in domestic law only if they are supported and enacted by statute.

Edward Garnier: A moment ago, my hon. Friend said that it would be open to the House to repeal the Human Rights Act 1998, which would simply remove the ability of English courts to try European convention points in the courts of England and Wales. Decisions would have to go to the European Court of Human Rights to be justiciable. What would my hon. Friend say if this Parliament not only repealed the Human Rights Act, but passed an Act removing us from the European convention? How would courts under his definition of the rule of law deal with that? Presumably, our membership of the European convention on human rights is a treaty matter and dealt with by the prerogative, and therefore not within the power of this House or this Parliament to affect.

William Cash: I do not agree with that at all. I suspect that my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) is about to leap to his feet. We had an interesting and quite heated exchange with the Foreign Secretary on this question on 16 September two years ago, when I was on the Front Bench, when he asserted that international treaties have primacy over statute. Of course, that is complete nonsense. After much further questioning over the following year, both written and oral, he eventually conceded that that was wrong.
	I refer my hon. and learned Friend to the Commissioners for Revenue and Customs case and to the judgment of Lord Diplock in—I think—1967, in which he unequivocally stated that it is open to any statute to break a treaty. I paraphrase, but I have the full text in front of me if my hon. and learned Friend is interested. The bottom line is that this is very important territory and that is why I am so concerned that there are those who would like to bury the question of the supremacy of Parliament and would rather that it was not given the coverage that I would prefer.

Keith Vaz: The hon. Gentleman will know that the Second Reading of the European Union Bill will be taking place next week, so I am sure that we will have more of this in that debate. Can he think of an example in recent history of a Lord Chancellor acting contrary to the principles set out in clause 1(b) of this Bill?

William Cash: I can say unequivocally that we have seen a serious invasion of the principles on which our constitution has been constructed, since 1688 at any rate—over and over again. That problem has worsened. It is extremely disturbing that that tendency has been perpetuated and entrenched by the Government, who have behaved wantonly with regard to the rights and principles on which our constitution is based. We could be here all day discussing that.

Richard Shepherd: I am not a lawyer, but there is a simple but important constitutional principle at stake. It has been adumbrated by parliamentary Committees, and it deals with the relationship of treaties to law. Treaties that exercise a prerogative power are subordinate to the legislative process. The European Communities Act 1972 has the force of law in Britain only because Parliament has thus legislated. Similarly, the European Court of Human Rights is subject to detailed legislation, so one can say that it meets the constitutional test. Other treaties, however, are pure exercises in prerogative power, and are therefore gainsaid by any direct reference in British law that is contrary to any of their provisions.

William Cash: I am grateful to my hon. Friend for that explanation and the reaffirmation of the position. It is important to consider what a constitution is. In the United Kingdom, we understand it to be the whole system of government and collection of rules, which would effectively be translated into a justiciable statute, as the courts would have the power to interpret the provisions of the Bill. That raises the stakes considerably. Parliament is involved, but only to a limited extent, in the making of treaties, which are laid before the House for 21 days under the Ponsonby rule. In a 2002 All Souls lecture, Lord Steyn said that
	"the supremacy of Parliament is the paramount principle".
	I wish to reassert that principle, and it is a matter of grave concern that it has been subject to continuing erosion by judicial drift. The cases of McCarthy's v. Smith, the metric martyrs and so on demonstrate that the European Union has assumed a legal personality, so we are in extremely dubious and difficult territory. In the 1964 case of Costa v. ENEL, and also in the Simmenthal and Internationale Handelsgesellshaft cases, the European Court of Justice has asserted its supremacy and superiority of jurisdiction not only over the laws of member states but over their constitutions. We acknowledged its primacy in the European Communities Act 1972, but only in respect of laws that had been enacted and functions conferred at that time.
	The whole thing has got completely out of control, and we now have a deepening to the point where the European constitution could effectively become the rule of law for the United Kingdom. Under article 1.6, it is clear that the European constitution—through the European Court of Justice, with the revocation of the treaties, and the reassertion of primacy over the new treaty, which is completely new—would have the effect of subordinating the will of the legislators in the House to decisions that were taken by the European Court of Justice.
	In other words, the rule of law and the principles contained in the Bill would subordinate the people of this country in their choices in general elections to the jurisdiction of the European Court of Justice in relation to all the matters in respect of which powers were conferred under the European Union Bill, which we are about to consider. Perhaps I can leave things at that for this purpose—although this is a very serious and deep question, we need to consider other matters today—but the bottom line is that this matter ought to be clarified, and the amendment is one way to achieve that.

Oliver Heald: In our constitution, there is no true separation of the powers of the three main institutions of the state: the legislature, the Executive and the courts. Although we have three such bodies, their powers are mixed and mingled. The Executive come from the legislature, but each is supported by an interdependent civil service, and in the case of Parliament, by the House authorities. The courts are independent in their judgments, but the senior judge is a member of the Cabinet as Lord Chancellor, and the courts are run by the civil service, which is part of the Executive.
	In such a constitution, strength comes from being part of the mixture and having a place at the table where power is exercised—in Cabinet. The Executive are stronger by being part of the legislature and by having a majority there. Parliament can benefit from holding Ministers to account in a very direct way, using questions, statements, debates and Select Committees. The post of Leader of the House is a senior Cabinet appointment. The courts benefit from having a senior Cabinet Minister—the Lord Chancellor—at the seat of power, arguing for judicial independence and being the Prime Minister's conscience by advocating the importance of the rule of law.
	It is a sad reflection that the Prime Minister did not appreciate any of those important considerations when he set about abolishing the post of Lord Chancellor on the back of a reshuffle. It was a back-of-the-envelope job, decided at short notice, without even consulting the Lord Chief Justice, and done in the cosy atmosphere of the chums around the sofa at No. 10—of course, by that time the chums no longer included the then Lord Chancellor.
	Lord Butler has expressed his concerns about the way in which the Prime Minister conducts his business, and particularly about the fact that the advice of senior civil servants is often not considered. We now learn from documents released under the Freedom of Information Act 2000 as a result of my requests that the most senior civil servant in the Department advised against dismantling the Lord Chancellor's role very strongly indeed. He said:
	"My advice is that the Lord Chancellor should resist all proposals to dismantle his office . . . the fact that the Lord Chancellor is also a senior Minister is a particular advantage".
	The Prime Minister made the changes without even considering such advice. He may well feel in retrospect that it would be better never to have started the process of abolishing such an important post; it has brought him nothing but trouble and hasty backtracking.
	Clause 1 recognises the constitutional principle of the rule of law and the Lord Chancellor's role in that context, and that the clause itself need not be justiciable. However, the clause does not go far enough. The Bill does not recognise the twin principles of the rule of law and parliamentary sovereignty. It does not urge the Lord Chancellor to use his best endeavours to ensure respect for the rule of law, which is a key role for him to act with other Ministers and in Cabinet. The rule of the law is not explained in any detailed measure in our constitution, and we agree with the Government that to make it justiciable would give judges too wide a scope to determine our constitutional law.
	At its simplest, "the rule of law" is used to denote that law rules, that all a Government's powers are derived from statute or the royal prerogative, and that individual rights cannot be infringed without the authority of one or other source of power. However, it goes further in asserting that where discretionary power is given to the Executive, it should not be arbitrary power, and that society is entitled to expect established principles of fairness and justice from its ruler.
	Taking a wide interpretation of that principle, there are respectable arguments that certain provisions in anti-terrorist legislation could be regarded as infringing the rule of law, and provisions limiting the rights of terrorist suspects might be said to fall within that category. The Government do not accept that analysis, but the Lord Chancellor's role is to air such concerns in Cabinet, if only to explain why he does not agree.
	The doctrine of the sovereignty of Parliament is a doctrine of the courts: Parliament is sovereign only because the courts say that it should be. Until the middle of the 18th century, common law judges generally held the view that the sovereignty of Parliament was subordinate to the wisdom of the common law. That doctrine fell away in the 19th century, and now we all readily admit that Parliament is sovereign. Nevertheless, that sovereignty is an expression of the courts, not of Parliament.

Richard Shepherd: In one way or another, I am listening to a rewriting of our constitution. Many of us say that the sovereignty of Parliament is a valid constitutional concept because it represents the sovereignty of the people, which is inalienable. My difficulty with my hon. Friend's argument is that we are discussing very big constitutional themes. I do not know how the rule of law is defined, who defines it, how it is a constitutional document and how we can safeguard it. Perhaps my hon. Friend will point out where the rule of law is satisfactorily defined in the Bill so that we, the people—let us use the language of constitutions—can determine whether the Bill is consonant with the rule of law.

Oliver Heald: The answer might be that academics identify various categories of the rule of law, which cover everything from the simple statement that "the law rules", to examining issues involving arbitrary power and discretion. The term can be used very widely.
	I agree with my hon. Friend the Member for Stone (Mr. Cash) that a case exists for placing parliamentary sovereignty at the core of the definition of the rule of law and including it in clause 1. My method, new clause 8, involves recognising a separate principle concerning the sovereignty of Parliament in clause 1. Clause 1 is included in the Bill because of the proposed abolition of the role of the Lord Chancellor, and it defines exactly what his roles have been in the past, given that his current role is being changed. The original proposal was to abolish him completely, but we have made a little progress on that point.
	New clause 8(2) would require the Lord Chancellor to
	"use his best endeavours to ensure that the rule of law is respected"
	by Ministers other than himself, which is our understanding of what a Lord Chancellor does in Cabinet. If a Minister proposes a draft legislative measure that, in the Lord Chancellor's opinion, is about to impinge on the rule of law, it is his constitutional duty to speak up in Cabinet and say so, which is what new clause 8(2) would allow. That point should be made clear on the face of the Bill.

Keith Vaz: I return to the point that I made to the hon. Member for Stone (Mr. Cash): can the hon. Member for North-East Hertfordshire (Mr. Heald) think of an example of a Lord Chancellor in the present Administration or the previous Administration who has not discharged his functions according to clause 1(b)?

Oliver Heald: It is because we believe that the proud tradition of the role of Lord Chancellor is to uphold the principles of the rule of law that we are so anxious to have such a provision on respecting the rule of law added to the Bill.

Richard Shepherd: How can we possibly know? I presume that the Lord Chancellor's advice is given in confidence to the Cabinet. We will not know one way or the other. That is part of the reason why one wants to tickle out what these provisions mean.

Oliver Heald: I agree that we want to add to the Bill that part of the Lord Chancellor's duty should be to speak up in Cabinet for the principle of the sovereignty of Parliament. Of course we do not know exactly what happens in Cabinet until the memoirs are written, and the 30-year rule no longer applies. It is my impression, however, with which I hope that my hon. Friend might agree, that successive Lord Chancellors—senior figures in their own right, legally qualified, and towards the end of their career—have been prepared to stand up for the independence of the judiciary, the rule of law and the important role of the sovereignty of our Parliament. We would like to preserve the Lord Chancellor's existing duties in respect of the rule of law, and to ensure that the change in the more general duties of the office of Lord Chancellor does not alter the important duty to bring to the attention of other members of the Government any proposed action that may offend against the rule of law.

Vera Baird: I follow what the hon. Gentleman is saying, but I am concerned about the way in which he has chosen to try to do it. First, if he accepts that the Lord Chancellor's existing constitutional role is to protect the rule of law, why is he concerned? Clause 1(b) expressly says that
	"the Lord Chancellor's existing constitutional role in relation to that principle"
	must survive. He is therefore just repeating an existing provision. It concerns me that, in fact, his new clause 8 would erode that duty, because all that new clause 8(2) would require the Lord Chancellor to do is to
	"use his best endeavours to ensure that the rule of law is respected".
	New clause 8(1) separates the two, saying,
	"Together with the sovereignty of Parliament, the rule of law shall continue to be a central principle",
	but requires the Lord Chancellor to protect only the second, not the first.

Oliver Heald: That is exactly the point made by my hon. Friend the Member for Stone—that the rule of law comprises the sovereignty of Parliament and the courts, and that it is therefore wrong to describe the sovereignty of Parliament as separate from the rule of law. My view is that both are true. The sovereignty of Parliament is a separate principle, but it is on that that the most important parts of the rule of law are based—that the courts in this country implement laws passed by Parliament, and that the sovereignty of that Parliament is implicit in that principle. I fully accept that that is arguable. The key difference now is that for the first time we are seeking to set that out in statute.
	The hon. and learned Member for Redcar (Vera Baird) says, as did the Lord Chancellor in the other place, that the provision that the existing constitutional role is not adversely affected is adequate. Given that part 1 of the Bill is designed to have a declaratory effect, however, we want to go one stage further and include the reference to respect and best endeavours. We feel that that takes the provision a little further and improves it.

Patrick Cormack: Is not this House at something of a disadvantage? I do not wish to make any disparaging or facetious comments about the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), who is extremely diligent and tries extremely hard, but it is a great pity that a Cabinet Minister is not dealing with this issue. Is it not also a pity that, because the Attorney-General is not a Member of this House, and the Solicitor-General, a Law Officer of the Crown who is a Member of this House, is not present, we are at a disadvantage because of the way in which the Government are treating this House in that context?

Oliver Heald: I do not want the Lord Chancellor to end up in the House of Commons. I like the fact that he is in the House of Lords. We will debate that later. I am somewhat surprised that the Solicitor-General has not seen fit to come here today, but there are doubtless reasons for that.

Keith Vaz: rose—

Oliver Heald: I want to deal with the issues raised by my hon. Friend the Member for Stone, who seeks to define the rule of law as including the sovereignty of the Queen in Parliament and of the courts. In my view, they are indeed part of the rule of law and are at the heart of the statement of the rule of law, which is that "law rules". He also seeks to clarify the law in an area of academic contention. He wants to establish whether the UK Parliament and courts are sovereign, so that Parliament can pass an Act that effectively disapplies the European Communities Act 1972 or the Human Rights Act 1998 on a case-by-case basis, given that such Acts were passed to recognise international obligations, and expressed themselves as affecting future obligations as well as past.
	Section 2(1) of the 1972 Act incorporated all existing EC legislation into UK law and
	"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties".
	Section 2(4) of the 1972 Act provides that past or future laws shall be construed, and shall have effect, subject to the provisions of section 2. The effect is to give primacy to EU law—as it now is—in certain areas of competence. As was explained as early as 1967, in the White Paper entitled "Legal and Constitutional Implications of UK Membership of the European Communities":
	"The Community law having direct internal effect is designed to take precedence over the domestic law of the Member States. From this it follows that the legislation of the Parliament of the United Kingdom giving effect to that law would have to do so in such a way as to override existing national law so far as inconsistent with it . . . It would also follow that within the fields occupied by the Community law, Parliament would have to refrain from passing fresh legislation inconsistent with that law as for the time being in force. This would not involve any constitutional innovation. Many of our treaty obligations already impose such restraints—for example, the Charter of the United Nations".

William Cash: rose—

Richard Shepherd: rose—

Oliver Heald: May I just finish this point?
	This issue came into focus during the Factortame case, which concerned the UK's obligation under EC law to allow Spanish fishermen to fish in UK waters within prescribed quotas. The UK enacted laws in 1988 under which, to be entitled to fish UK waters, a vessel would have to register as British. Some 94 boat owners took the UK to court, claiming that those laws were incompatible with the relevant EC treaty and the common fisheries policy. Their case ultimately proved successful in the European Court, and UK law had to be changed.
	However, the interesting point came when an application for interim relief was made, in the first instance, to the UK divisional court. The court granted relief, but the decision was overturned on appeal and the Court of Appeal's ruling was upheld in the House of Lords. When the matter came before the European Court, the UK argued that Community law did not oblige or enable a national court to grant interim relief suspending the application of a national measure. The European Court ruled that where a national court would have granted interim relief to protect directly effective Community law rights but for the national measure, it must set aside the national measure. The full effectiveness of Community law would be impaired, it said, if a jurisdictional rule in the law of a member state prevented its national courts from granting interim relief.
	The House of Lords was under a Community law obligation to give effect to the European Court ruling, because it was automatically brought into English law by operation of section 2(1) of the 1972 Act. Since then, many have argued that if the law changing the fishing registration arrangements had expressly disapplied the 1972 Act, it would have been incumbent on UK courts to uphold the UK law, because of the sovereignty of Parliament.
	There has also been debate about the extent to which the decision on interim jurisdiction would affect situations where a different jurisdictional rule is involved, and about the extent to which the sovereignty of Parliament might be affected. It is clear that the old rule that a new Act takes precedence over an old one, and that any inconsistency is resolved by the doctrine of implied repeal, has been modified by the 1972 Act and by the Human Rights Act. Express disapplication of these provisions would be required in order to make an effective change in the law, if such a change conflicted with EU law. My hon. Friend the Member for Stone asked whether even that would be enough, and whether, if Parliament expressly disapplied the 1972 Act in respect of a particular Act, that would be effective in UK courts.
	Some argue that the European constitution takes this a step further, making citizens directly bound by the legal supremacy of Union institutions. My hon. Friend the Member for Stone has pursued these issues with Ministers, as has my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), and the answer to a written question reflects what they wished to establish. The Minister stated:
	"The ultimate guarantee of parliamentary sovereignty lies in the power of Parliament to repeal all or any of the Acts which give effect to the EU treaties in this country. It is within Parliament's power to legislate contrary to the UK's treaty obligations. This of course includes legislation that might impact on the effective implementation of Article I-10(1)—
	that is, of the proposed European constitution. The Minister's reply continued:
	"The result of so doing, however, would be to place the UK in breach of its treaty obligations." —[Official Report, 15 December 2003; Vol. 415, c. 732W.]
	What my hon. Friend the Member for Stone seeks to add to the Bill would, in his view, place that principle of parliamentary sovereignty firmly on the face of the Bill. It seems hard for the Government to deny him. The Minister may say that that is unnecessary, but that argument might apply equally to clause 1 itself, yet the Government accept the necessity of the declaratory effect.
	As the then Minister for Trade and Investment, who is now the Minister for Energy and E-Commerce, said in answer to a debate initiated by my hon. Friend on 24 March 2004:
	"our position has been entirely clear, and we have held it throughout. Parliament already has the power to legislate contrary to our treaty obligations"—[Official Report, Westminster Hall, 24 March 2004; Vol. 419, c. 317WH.]
	He went on to cite Lord Denning, who said in the case already mentioned, Macarthy's Ltd. v. Smith, that it is always within Parliament's power to legislate contrary to the UK's treaty obligations. The Minister went on to point out that this would cause a good deal of trouble. It would certainly lead to serious discussions within the EU, but the question before us is not whether to have such an argument, but whether we are able to pass such a law, if we choose to do so, in a way that is effective in the UK courts. I believe that we are entitled to do that. Ministers seem to agree, so there is no reason not to add the words contended for by my hon. Friend.
	It is right to make it clear that the issue is of concern more widely than just to UK Conservatives. In both Germany and Denmark there is the belief that certain aspects of their constitutional law take precedence over EU law. That was asserted by the German constitutional court in the Maastricht judgment in 1994. It was hoped that there would be no conflict, but the judgment asserted the German court's right to disapply an inconsistent EU law. In Poland, senior academics argue that EU law has no primacy over the country's constitution.
	The most recent statement of the law in this area in the UK came from Lord Justice Laws in the so-called metric martyrs case, Thoburn v. Sunderland city council. After describing a hierarchy of statutes and identifying the European Communities Act and the Human Rights Act as "constitutional statutes", he went on to say:
	"Ordinary statutes may be impliedly repealed. Constitutional statutes may not."
	That is controversial. He continued, less controversially:
	"For the repeal of a constitutional Act or the abrogation of a fundamental right to be effective by statute, the Court would apply this test: is it shown that the legislature's actual—not imputed, constructive or presumed—intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible."
	He stated that what is required are
	"unambiguous words on the face of the later statute".
	My hon. Friend wishes to have parliamentary sovereignty written into the Bill, and there is no reason not to do that. He may disagree with the EU more than some— probably including me—but the provision is not about an argument with the EU. It is about the powers of Parliament and the courts, and I believe it reflects the current state of the law.

Paul Tyler: I shall be brief, as I am agog to hear how the Minister will respond to the interesting discussion between two Conservative Members, one on the Front Bench and one on the Back Bench. From what the hon. Member for North-East Hertfordshire (Mr. Heald) said, I am not clear whether he prefers his new clause or the amendment tabled by the hon. Member for Stone (Mr. Cash).

Oliver Heald: I said the new clause and the amendment were not inconsistent. I hope to have a separate Division on new clause 8 in due course.

Paul Tyler: I understand that point, which is very interesting, but as I read it, the amendment and the new clause could not be included in the Bill together, so there is a potential conflict of interests.
	I pay tribute to our briefing from the Select Committee on Constitutional Affairs on the Bill and on the amendment. I hope to see that innovation more often from Select Committees. My right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), the Chairman of that Committee, ensured that its third report of the 2004–05 Session set out an interesting and useful analysis of the way in which the Bill started its life in the House of Lords, referred to the concordat, to which much reference has been made—no doubt more will be made this evening—and included a helpful clause-by-clause comparison. The Minister may now be regretting that his colleagues in the other place decided to include clause 1, thus enabling us to have this sort of discussion. It might have been easier if it had been left out.
	Nevertheless, we welcome the clause, and we want to be sure that it will be sufficient as it stands. That is surely what our business is. As a non-lawyer with some experience of the law as a recipient, I have always inclined to the view that the simpler the law can be, the less it can be misunderstood and misinterpreted. I start from the basis that the Bill as it stands, which is very simple and straightforward, is preferable to either of the alternatives that we are considering.
	I understand the concern of the hon. Members for North-East Hertfordshire and for Stone about providing further definition and exploring issues of enforceability. I fear that I lost the drift—that is probably the right word—of the argument of the hon. Member for Stone. He said—I hope that I am quoting him correctly—that his amendment would ensure that there was a clear statement of the current position, but he then paused and said that he had a proviso. His comments about the proviso went on for two or three more minutes, so the clarity of the position that he was describing was rather lost. It was curious that he then stepped further into the future and sought to anticipate the effect of the European constitution, which is not even before the House yet. As I understood it, his position is that he is not in favour of it, so it was curious that he tried to anticipate it.

Keith Vaz: Does the hon. Gentleman agree that the phrase "best endeavours" in new clause 8 would weaken the effect of clause 1(b)?

Paul Tyler: I understand that point. The hon. Member for Stone was asked about the enforcement of the provision, given the fact that the Cabinet and its Committees sit in private. How could such provision ever be enforced? I think that it could be interpreted as weakening the Bill as it stands.
	I am afraid that I am very much with the hon. and learned Member for Redcar (Vera Baird), in that I do not understand the necessity of the further definition. If anything, it would dilute and reduce the impact of clause 1 as it stands. The most interesting point about the argument of the hon. Member for North-East Hertfordshire is that he is obviously edging towards a complete and comprehensive written constitution. That happens to be the position of my right hon. Friend the Member for Berwick-upon-Tweed, myself and our party. As far as I am aware, such a position does not represent the views of the Conservative party. Surely, a constitution is needed precisely to define and codify to avoid overlap, lacunae and turf wars. That is, after all, the basic argument for a European constitution, and it will be interesting to hear whether that argument will be put from the Conservative Front Bench.

William Cash: Will the hon. Gentleman give way?

Paul Tyler: I am just about to conclude.
	My point for the Minister is that I find it difficult to understand what would be added if the amendment or the new clause were included in the Bill, when as I see it, we already have a very clear statement of the rule of law. It seems to me that that is all we should be seeking to achieve.

John Redwood: I support my hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Stone (Mr. Cash) in saying that the sovereignty of Parliament should be clearly recognised as an important principle in the Bill and in clause 1. I do not see how the Government can, in fairness, reject that plea, although I am sure that they will find ways of doing so that are unfair. In fairness, if they think that their Bill requires an assertion that the Lord Chancellor must uphold and work for the rule of law, it is surely important to recognise the fundamental principle of our legal system that all statute law emanates from the power of the people expressed through their Parliament.
	As my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) reminded us, power ultimately comes from the people, who entrust it for a period of years to their elected representatives until it returns to the people when a new Parliament has to be elected. It used to be a fundamental principle of our excellent British constitution, as recorded in a variety of documents over the years, that no Parliament could bind its successors. That principle is crucial if the people are to have power over their legislators and to be able to choose different legislators at the date of dissolution and subsequent election if the previous legislators have not suited their will and purposes. That is why some of us have been worried by the issue that bedevilled the early part of the discussion on this big Bill: whether European law can now effectively bind future Parliaments, and whether treaty law can do what statute law cannot do and thwart the will of the British people should they change their minds about things done in their name by previous Parliaments through the European Union.
	Therefore, it is welcome to discover, as my hon. Friend the Member for North-East Hertfordshire pointed out with some extremely well chosen quotations, that the two Front Benches—the official Opposition and the Government—are united in upholding the view that, ultimately, the sovereignty of Parliament is still intact, that the powers of the European Union emanate from the European Communities Act 1972, and that what Parliament can create it can amend or remove. There is strong disagreement in our country about whether it would ever be wise or desirable to test that point by passing suitable legislation in this House to amend the 1972 Act, but it is welcome to know that the main interests in the House agree that that can be done legally under our system, in which the Queen in Parliament is sovereign. It would therefore be welcome if that principle were written clearly into this grand, declaratory Bill, which begins with the wide-ranging and high-flown clause that we are debating.
	Another issue to which the Minister should respond is how far the request for, or requirement on, the Lord Chancellor goes to observe the rule of law as we understand and define it. That would not be difficult were the Lord Chancellor a happy inheritor of the tradition of our rule of law and common law, but it would be less comfortable for a Lord Chancellor who was a moderniser and reformer and who wanted to make fundamental changes in the way in which the rule of law is understood and enforced. For example, does the Minister believe that any Lord Chancellor could take any action that he or she liked as regards how future jury trials should be conducted, or whether juries should be involved? Under clause 1, can any Lord Chancellor take whatever view he or she wants to take on imprisonment without trial or without identifying an offence or charge, or does there come a point at which the Lord Chancellor is acting beyond his or her remit because the rule of law is defined by our common law and traditions, and by the many fine words and judgments that have gone before?
	The debate is interesting and apposite and I look forward to assurances from the Minister that the intention is to create limits on how far a Lord Chancellor can go in wrecking, destroying or undermining the liberties and rights of subjects under the common law.

William Cash: Does my right hon. Friend acknowledge that had the Merchant Shipping Act 1988, which gave rise to the difficult decision in the Factortame case, started with the words, "Notwithstanding the European Communities Act 1972", as I suggested back in those days, we would not have got ourselves into this judicial mess as regards our internal constitutional position? Will my right hon. Friend note that, on 12 January, Professor Alan Dashwood stated that in the context of a Bill that began with the words, "Notwithstanding the European Communities Act 1972", whether
	"there has been a shift of ground law or not with an unwritten constitution like we have, you can only wait and see how the judges would react to that Act of Parliament."
	That is matter of concern, and it is why I have been pressing the point. Does he agree that we must pursue that?

John Redwood: I have already said that I fully agree with my hon. Friend and also my hon. Friend the Member for North-East Hertfordshire that it is a good idea to identify the sovereignty of Parliament as central in the first clause of such an important constitutional Bill. Should some future Parliament contain a majority that wished, for example, to disapply some Community law or change Community arrangements without a new treaty having been negotiated, it would be a prudent precaution to begin the legislation with an express repeal or amendment of the part of the 1972 Act that Parliament wished to alter. I am sure that the judges of our country would understand, under the rule of the sovereignty of Parliament, that it was good law that should be enforced.

Vera Baird: If the right hon. Gentleman wants to guarantee that the Lord Chancellor supports the sovereignty of Parliament above all else, why does he support new clause 8, which does not give the Lord Chancellor a duty to do that? It separates the rule of law from the sovereignty of Parliament and gives him a duty to support only the second and not the first, whereas clause 1 clearly gives the Lord Chancellor a duty to support both.

John Redwood: Clause 1 does not expressly state that the sovereignty of Parliament is crucial. As I understand new clause 8, the principle of the sovereignty of Parliament would be above all others. Clause 1, as amended, would therefore bind not only the Lord Chancellor, but everyone else in the judicial process. That would be welcome. It is a suitable point at which to sit down in the hope that the Under-Secretary will rise soon to reassure us on those matters.

Alan Beith: The remarks of my hon. Friend the Member for North Cornwall (Mr. Tyler) about the Select Committee report were kind and much appreciated. I hope that it proves useful to hon. Members in identifying the issues that have not yet been resolved.
	Considerable changes have been made to the Bill, many of which respond to issues that the Committee raised and were subsequently raised in the Lords. I am pleased about that, but the Bill has never appeared to me either to make, or purport to make, changes to the sovereignty of Parliament. Indeed, it does not purport to make changes in the rule of law. A question therefore arises about the necessity of the clause and any amendments to it.
	I welcome clause 1 because it became clear in Committee and in the other place that there was much concern among the judiciary and more widely that the future Secretary of State for Constitutional Affairs—as he was then to be—would not have or recognise the same duty to assert the rule of law in Cabinet discussions as was previously assumed to be the case. That was based on a rather rosy view of what happened in previous Cabinets, especially if we look back to some earlier, very political Lord Chancellors.
	More recently, we have had senior Lord Chancellors of different parties, of the sort that the Committee hoped we would get in future—people who had reached the end of their political career, were not looking for further office and did not have ambitions for other Cabinet posts. We believed that a model had been developed in which the Lord Chancellor upheld the rule of law. Perhaps an even more pressing reason for our support for that model was that the moment that the Lord Chancellor stopped sitting as a judge, it became inappropriate for him to take the judicial oath. Alternative provision was eventually included in the Bill, but the disappearance of his swearing the judicial oath was viewed as yet another way in which his commitment to the rule of law might be undermined.
	Even in recent times, one can make speculative comparisons about how far different Lord Chancellors would impress on their colleagues the importance of the rule of law. I remember Lord Irvine publicly dressing down a Minister on the independence of the judiciary, but I challenged the current Lord Chancellor because I could not find an example of his doing the same. I made suggestions about when he might have done so, for example, when the then Home Secretary, addressing the Police Federation, said, "We want only judges who help us to do our job." That obviously seemed to him to be an entirely innocent statement, but to me and others it seemed to represent a contradiction of the principle that judges are there to reinforce the rule of law, and not to do what happens to be convenient for the Government. The presence of this provision in the Bill is therefore welcome, as it addresses precisely those concerns.

John Taylor: Before the right hon. Gentleman leaves that important point, does he agree that the ultimate supremacy of the judiciary is essential, because it is always open to an affected party to take a member of the Executive before the court on judicial review? That is why his remarks on this subject are so very important.

Alan Beith: That is so. Most people take the term "rule of law" to mean that nobody—including Governments and Ministers—is above the law. We see the rule of law being threatened in certain countries when people start to behave as though they are above the law. In Zimbabwe today, for example, we see the judiciary struggling to maintain the rule of law while the Executive are determined to ignore its actions or to override them in various ways. That is a classic example of the dangers that can result when those in power cease to recognise the rule of law. Such people often have at their disposal the physical means to contravene the rule of law, whatever the courts might do to insist that they recognise it.

Richard Shepherd: When lawyers, including our top lawyers, are presented with an Act of Parliament that abrogates what the right hon. Gentleman and I think of as the rule of law, they are bound to accept it. That is why a layman such as me needs the rule of law to be clarified and defined, and not simply through reference to that vague hinterland of Dicey or to judges' ruminations on the matter. The right hon. Gentleman was right to remind us of what the then Home Secretary said.

Alan Beith: There is a lot to be said for Dicey and his definitions in this field.
	The trouble with placing a definition in statute is that it is inclined to narrow rather than to widen. The judiciary has a very good record of using to the maximum the breadth of statute law for the protection of the individual, and I would not want to undermine that by an excessively tight definition, or by a definition that seemed to point us in one direction rather than another. I fully understand, however, the various reasons that have been introduced in support of the amendment. It has been worth introducing them because they have opened up the opportunity for a debate on the issue. Some of the arguments will be able to be considered on another day and in another context, especially those relating to the supremacy of Parliament, which the Bill does not attempt or purport to change.

William Cash: Does the right hon. Gentleman accept that the issue at the heart of this debate is not the rule of law, but the rule of which law? In the context of the European debate, there are competing assertions as to which law is superior. When we talk about the rule of law, therefore, the necessity to get this right is dependent on the question that gives rise to it. In other words, we need to arrive at a definition that asserts the sovereignty of this Parliament, precisely because the European Court of Justice asserts that the constitution of Europe, or the existing treaties, have priority over our own laws, and, in the case of the constitution, over our constitutional arrangements in this Parliament as well.

Alan Beith: I understand the point that the hon. Gentleman is making. It is one that he has been determined to make on many occasions. However, this part of the Bill addresses the duty of the Lord Chancellor and asks whether he has the express duty to uphold the rule of law. It does not ask in what areas the rule of law presents dilemmas or problems relating to the state of the law, or to which part of the law has superiority. International law issues come into that question, and they are important issues. They are not, however, what this clause seeks to define. Perhaps we are getting back to the Gilbertian expression by a Lord Chancellor:
	"The Law is the true embodiment of everything that's excellent . . . and I, my Lords, embody the Law."
	That is quite a good description of the way in which Lord Chancellors of the time viewed the matter, but we have moved on since then.
	The Bill needs to ensure that the person who holds the office that is, quite usefully, still going to be known as Lord Chancellor, despite its substantially changed character, should recognise that it is part of his duty to remind his fellow Cabinet Ministers of their obligation to the rule of law, and that they should not even appear to want to threaten or compromise it. He should have the authority of statute when he does so.

Richard Shepherd: I am very attracted to the arguments of the right hon. Member for Berwick-upon-Tweed (Mr. Beith), the distinguished Chairman of the Speaker's Committee on the Electoral Commission. He addressed himself to what he took as a rough guide to what the rule of law is: no one is above the law. But the rule of law has to be more than that, does it not? Does it not have anything to do with the process of law or the nature of the law? We can all be equal under a tyranny that manufactures laws to imprison us. That is why some of us are very nervous about a Bill that begins with clause 1, "The rule of law". I ask the right hon. Gentleman this: is it the Dicey definition? Is it protected by the conventions that form it, or as judges have advanced it into the 21st century?
	These are probing questions. I want to be given some of the answers, with the certainty that I expect from able and competent lawyers—a certainty that I do not have, as a mere representative of Aldridge-Brownhills. What constitutes this concept? We observe the judges seizing a principle of which, when I was a child, we had little cognisance: judicial review. This whole development is outside statute law. Do I object to that? Not necessarily. I puzzle over it sometimes, but I know that between some point in my youth and now the law has changed when it comes to how Governments are held to account.
	I do not want to make a meal of it, but these are terribly deep and important principles that inform our freedoms and liberties. My hon. Friends on the Front Bench want to safeguard a concept of the rule of law, and, in all fairness, I do not doubt that the Government do as well. However, the Bill refers to
	"the existing constitutional principle of the rule of law".
	I return to my original question: what is that? No authority that is a constitutional authority states unchallenged, "This is the principle". We debate the concept and we argue about it. The intention of the Bill, and of clause 1 in particular, however, is to reassure us that the independence and the integrity of the judiciary are safeguarded.
	I am struggling to decide whether the Bill is in fact more sinister than the Minister attractively suggested. Indeed, he suggested that it was not sinister at all. I do believe in the principle of the rule of law, but it is a Shepherd principle. Each of us probably has a principle of the rule of law, but as often as not it is half Dicey, half the development of judicial activism. It is how we think it ought to be if it is to secure our liberty and freedom. That is the difficulty with measures such as this, which touch on constitutional principles.
	I am glad to observe that the Liberal Democrats have come in behind Shepherd and want a written constitution. That would set out such matters clearly. I know, however, that my hon. Friends on the Front Bench and my hon. Friend the Member for Stone (Mr. Cash) are trying to establish a protection for us all. That is why we talk about the primacy of Parliament or, as I should like it to be called, the primacy of the people. In the end, all these Bills and Acts are constructed only through the authority of the people who send us here on our temporary mission as Members of Parliament.

Oliver Heald: I strongly agree with my hon. Friend on his last point. He fairly made the point that the rule of law means a range of things to different people. My hon. Friend the Member for Stone (Mr. Cash) is not seeking to define the whole of what the rule of law may mean. He is trying to home in on one aspect. I believe that defining what the rule of law should mean for this purpose is well worth doing.

Richard Shepherd: I accept that, but we will come to clause 4 presently. Again, that which it directs judges to consider as sources of law is way beyond anything that we presently acknowledge as having direct effect in British law. That is why, when I think about what the rule of law means in the context of the wider Bill, I am not dismissive of the sovereignty of Parliament. I have no doubt that that is the most fundamental authority for this country and its constitution. However, that constitution is not enacted. It has been developed and accepted by the courts across a period of time. We could say that it is part of the rule of law, but we saw the assault on what a judge seemed to deem constitutional Acts. We are not sure in our own minds, and our courts are not sure, what constitutes a constitutional Act. Even when a judge mentions the special category of constitutional law—these are particular pieces of legislation or statute that we should look at very carefully—it is contradicted by others.
	Therefore, there is no certainty as to what this means. I want all the protections for our traditional freedoms—the first in the continent of Europe. That is why the Bill is important. I accept the Government's arguments on that. I understand the purpose behind the Bill, some of which I have no difficulty with, but when we come to this clause and to clause 4, the significance of which I will not go into now, I am very diffident. Therefore, I will support the new clause and the amendment, which is a probing and interesting amendment that, as we all understand, has wider connotations than just the European Communities (Amendment) Act. Because of clause 4, it can touch on tribunals and a number of things, all of which are important. Therefore, I will support the amendment.

Edward Garnier: These are mighty issues and I feel even more diffident than the good Shepherd, my hon. Friend the Member for Aldridge-Brownhills, in discussing them, but I shall try to join the discussion to this extent.
	My hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Stone (Mr. Cash) seek to amend clause 1. Clause 1 is fundamentally intellectually dishonest, because it says:
	"This Act does not adversely affect",
	and it sets out what it does not adversely affect in subsections (a) and (b), but hanging like a ghost in the background is the implication that some other Act, either existing or, more likely, a future Act, may well do so.
	The clause seems to fall into the category of an early-day motion set into legislation. In my view, Acts of Parliament should not set out wishes or declarations, but should deal with concrete issues. I am not convinced that
	"This Act does not adversely affect . . . the Lord Chancellor's existing constitutional role"
	in relation to
	"the existing constitutional principle of the rule of law",
	not least because it is difficult to define what the rule of law is. The Opposition side had an interesting exchange about that. I am doubtful that the Bill will not change—and change quite radically—the Lord Chancellor's existing constitutional role, so I am wholly sceptical about clause 1.
	I am glad that my hon. Friends have spoken in support of their amending provisions, because they have enabled us to have a useful debate, but I am not sure that the two respective sets of arguments—both where they coincide and where they differ—answered the problems effectively.

William Cash: That happened because we were each seeking a solution to a problem that we viewed in common. Unfortunately, we did not come together to discuss the wording. Had we done so, we probably would have arrived at something slightly different on both counts. That does not alter the powerful reason for seeking to elucidate the deep questions that lie at the heart of the clause.

Edward Garnier: I do not know whether that is an explanation or an excuse, but it does not get us much further.

William Cash: It is a plea in mitigation.

Edward Garnier: I am grateful to my hon. Friend for putting forward that plea.
	I believe that the strength of our constitution depends on the mutual respect and understanding of the powers and duties pertaining to each part of our constitution. There seems to me to be a growing gap between parliamentarians and the law, and between practitioners and academics on the legal side, and they increasingly seem to inhabit a different country. We no longer speak the same language or seem able to communicate in terms of mutual understanding. That is why we often hear speeches in the House that attack the judgments of judges and also why, thank goodness, we hear Lord Chancellors, as in the case of Lord Irvine, criticising the Home Secretary for intemperate remarks about the judiciary. If Lord Irvine did not understand the finer art of diplomacy, he certainly understood the difference between these two aspects of the constitution—the respective roles of the Executive and the judiciary. Such understanding seems to be dying rapidly and it is cured neither by clause 1 nor, I fear, by the amendment and new clause that my hon. Friends have proposed. That worries me.

Oliver Heald: Does my hon. and learned Friend accept that one advantage of new clause 8 is that it places a duty on the Lord Chancellor to do something specific—namely, to
	"use his best endeavours to ensure that the rule of law is respected"—
	and, I would add in parenthesis, to do so in the Cabinet? At least the conscience role of the Lord Chancellor is clearly set out there beyond peradventure. Is that not something worth doing?

Edward Garnier: It might be if I thought that it would be effective, but how is it to be enforced? How do I know, as a citizen or even as a Member of Parliament, whether the Lord Chancellor is using his best endeavours in the Cabinet to ensure that the rule of law is respected? I do not know. I have to trust the Lord Chancellor to do so. I can trust the Lord Chancellor if I respect both the man or woman who occupies that office and the office itself, but the problem is that the Bill undermines the office. The Government want less authoritative and respected holders of that office, so my faith in the Lord Chancellor's ability to ensure that the rule of law and the different roles of the Executive and the judiciary are respected is diminished to that extent.
	When the late Lord Hailsham of St. Marylebone was Lord Chancellor, he said that it was his duty to defend the independence of the judiciary "to his final breath". He was not interested in "best endeavours". Although I understand that that expression is used day in, day out in court undertakings and consent orders, it is not what I expect to find in an Act of Parliament describing the duties of a Lord Chancellor. It sounds a bit wimpish and I view it as utterly unsuitable for an Act of Parliament. I am not even convinced that, if the phrase were to be included in the Bill, it would be enforceable. It would not, so why are we writing yet another early-day motion sort of provision into a piece of legislation?

William Cash: I would like to help my hon. and learned Friend in respect of his concern about the origin of the definitions and the amendment's attempts to deal with the definition of the rule of law. I refer him and the House to the case of X v. Morgan-Grampian of 1991 and the judgment of Lord Bridge. For practical purposes, I modelled my wording precisely on what he said, although I adjusted it slightly to take account of the European dimension of the problem. I hope that it helps my hon. and learned Friend to know that my amendment was based on the judgment of a very senior Law Lord.

Edward Garnier: I have no doubt at all that my hon. Friend spent a considerable time studying law reports and legal textbooks. I am also sure that the expressions used in his amendment are well sourced, in so far as they emanate from eminent judges. What I am concerned about, however, are the practical consequences of placing his provisions into an Act of Parliament. I am worried that playing the Government's game by amending the Bill, rather than striking out clause 1 entirely, might be falling into the trap that the Government have set for us.
	The rule of law will not be protected one bit more by clause 1—still less, I am afraid, by new clause 8 or amendment No. 364. I understand all the arguments advanced by my hon. Friend the Member for Stone, in particular that our government and law-making systems have been internationalised over the past 20, 30 or 40 years. He and I have fears about further internationalisation of our domestic government system in the forthcoming year. I also understand that, as that happens, competition for influence and the demands of others to influence us will grow.
	That is a real concern for my hon. Friend, for myself and, I hope, for every Member in the House. We face a vast and, in many ways, unwelcome cultural change in respect of how this country is run. Power is seeping away from this Chamber and this Parliament, as is the ability of our courts to uphold the rule of law, whether it be the common law as revealed by the courts or statute law as interpreted by the courts. All that is seeping away to other places. As both Members of the House and citizens of this country, we need to be wary of that, to debate it and to do our best to protect against it.
	What really concerns me is that new clause 8, amendment No. 364 and clause 1 amount to nothing more than a lot of writing. They have enabled us to conduct this interesting discussion, but they do not protect our constituents or underpin the office of the Lord Chancellor, which the Bill as a whole fundamentally destroys.

Christopher Leslie: The Government are and remain strongly committed to the principle of the rule of law. Both sides of the debate so far agree that the Lord Chancellor has and will continue to have a vital role in ensuring that the rule of law is upheld. In my view, however, we must be careful not inadvertently to disturb other crucial arrangements of our constitution in the process of framing statute law. The issue of how best to make provision for the rule of law in the Bill was extensively debated in the other place, with various amendments tabled and discussed. There, and to a certain extent in our debate today, two points have been commonly agreed: first, the Lord Chancellor has always had a role connected to the rule of law that we would not wish to lose or diminish; and, secondly, the duty of the Lord Chancellor is in general political, rather than a duty to be enforced in the courts. Clause 1 meets both those concerns by acknowledging that the Lord Chancellor has a duty in respect of the rule of law and that that duty is not cognisable as a matter of law.
	Clause 1 preserves and reinforces the status of the rule of law as a principle of the constitution—uniquely, incidentally, in statutory language in this country—and is thus a powerful statement of our commitment to that principle. I think that the hon. Member for North Cornwall (Mr. Tyler) agreed with that point. It will ensure that the reformed office of Lord Chancellor will continue to have deliberations informed by that principle in the same way as the current office of Lord Chancellor, but in a manner that will not have wider or unintended effects.
	I wish to address the arguments surrounding new clause 8 and amendment No. 364. New clause 8 is almost identical to a provision moved and subsequently withdrawn by the Opposition on Report in the House of Lords. The Government oppose it for broadly the same reasons as we outlined at that time. Including the question of parliamentary sovereignty in the same clause as the rule of law raises difficult questions about the relationship between those two principles, and that between them and other principles that are not mentioned in the Bill, such as collective responsibility, ministerial accountability to Parliament and the proper scope of judicial review. That problem is exacerbated by the reference in new clause 8 to the rule of law being a "central principle", which tends to imply that some sort of ranking of different constitutional principles is occurring.
	Additionally, we, like the hon. and learned Member for Harborough (Mr. Garnier), are worried about the precise meaning of the phrase "best endeavours" in the new clause, and concerned not only about how the Lord Chancellor's best endeavours might be measured, but about how they might interact with other constitutional conventions, such as the Lord Chancellor's role as a Cabinet Minister subject to normal collective responsibilities.

Oliver Heald: Of course that is deliberate. Does the Minister accept that the rule of law is an overarching principle that comprises the various other points that he raised?

Christopher Leslie: We are in danger of becoming a theoretical academic institution instead of focusing precisely on the provisions that should be included in the Bill. Clause 1 says that nothing in the Bill will adversely affect the rule of law, although I understand that there are different interpretations and definitions of that. When I respond to the points made by the hon. Member for Stone (Mr. Cash), I shall explain why it would be neither helpful nor useful to go into definitions of the rule of law, not least for the reasons outlined by the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who said that statute tends to narrow definitions rather than widening them usefully.
	Subsection (2) of new clause 8 places an emphasis on ensuring respect for the rule of law. That could be taken as implying that the Lord Chancellor has a current duty to enforce the law against others, but that has never been his responsibility. Furthermore, there is some confusion about the meaning of subsection (3) of new clause 8. For example, would it mean that no judicial remedy would lie against the Lord Chancellor for a breach of duty if it did not lie there before? Could a court henceforth take the existence of a duty into account when deciding a question before it, and if so, how? Although I would not wish to pick too many holes in the drafting of the provision, we would be embarking on difficult territory if we started to set different worthy constitutional principles alongside each other or rank them in such a manner that they became judicially enforceable in different ways.
	Subsection (3) of new clause 8 implies that the Lord Chancellor might have existing duties in relation to the rule of law that are currently enforceable via judicial remedy, but we do not agree with that proposition. There are specific duties enforceable on Ministers that could be said to be part of the rule of law, such as those under the Human Rights Act 1998, but there are no duties in relation to the rule of law as a whole.

William Cash: Is not the Minister somewhat hoist by his own petard? The problem that he is describing arises due to the fact that the Government have taken all the conventions, rules and assumptions that the courts have developed for centuries and attempted to compress them into the Bill, especially into clause 1. They have thus created the problem. We did not want to have to define the rule of law in itself because we thought that it was already well established. The Government have created a problem by attempting to put that in statute, which will be subject to administrative review.

Christopher Leslie: The inclusion of the clause was not wholly an Executive-determined move. It was the product of much debate and extensive discussion in the other place. In fact, I am glad to say that the Liberal Democrats, who still support clause 1, recognised that the wording of the clause was broadly adequate because it confined itself to the Bill and stated that nothing in the Bill adversely affected the established rule of law. The shadow Lord Chancellor, Lord Kingsland, reasonably and decently withdrew the amendment that he moved in the other place. He said that the debate was
	"a good example of constructive thinking between the Government, the Liberal Democrats and ourselves. We are entirely content with the outcome."—[Official Report, House of Lords, 20 December 2004; Vol. 667, c. 1540.]
	What a shame that the hon. Member for North-East Hertfordshire (Mr. Heald) is taking a slight step back from the more rational approach of his shadow ministerial colleagues in the other place.
	Amendment No. 364 would define parliamentary sovereignty as an aspect of the rule of law. As I said, we know that the rule of law is a complex principle and that many eminent legal minds and constitutional thinkers have failed to agree precisely what it entails and where it begins and ends. That is why I agree with the right hon. Member for Berwick-upon-Tweed, the Chairman of the Constitutional Affairs Committee, that including a definition of it in the Bill would be not only unnecessary, but perhaps a little dangerous.
	I cannot agree that even the apparently simple definition in the amendment is either adequate or sufficient. Even if we were to agree that a definition of the rule of law was desirable in statute, it is debatable as to whether parliamentary sovereignty would be referred to within that definition or set out separately as a free-standing principle. Again, the problem is that the amendment tries to bring the two principles together without explaining the relationship between them. When the matter was debated in the other place, it was accepted that picking out specific aspects could lead to the undesirable listing of differently ranked constitutional principles.

William Cash: On the ranking of principles, does the Minister deny that there is uncertainty in judicial and academic circles about the question that I put to the right hon. Member for Berwick-upon-Tweed (Mr. Beith) on competing claims as to which law is superior? When Professor Alan Dashwood, the professor of European law at Cambridge, gave evidence to the European Scrutiny Committee, he made it clear that it is down to judges to decide that. If that is the case, it is most unsatisfactory from the point of view of asserting parliamentary sovereignty—I understand that the Government now agree with me on that.

Christopher Leslie: I have said it before and I shall say it again: I see parliamentary sovereignty as absolutely prime in our constitutional settlement. I am slightly loth to embark on a discussion with the hon. Gentleman about treaties and how they interact with, or impinge upon, parliamentary sovereignty; suffice it to say that I do not think that anything in the Bill undermines parliamentary sovereignty. On the contrary, the Bill helps to enhance our constitutional settlement by making the different functions of the legislature, the judiciary and the Executive clearer. For those reasons, and for the reasons that I gave in comments on both the amendment and new clause 8, it would not be wise to include those provisions.
	Clause 1 adequately and judiciously hits the mark in helping to placate those who may feel that in some way the change in the office of Lord Chancellor is diminishing that officeholder's role, and in defending the existing principle of the rule of law. That is why clause 1 is in the Bill and I urge hon. Members to withdraw their amendments.

Oliver Heald: After hearing the Minister's comments, I remain convinced that not only the rule of law but the sovereignty of Parliament should be referred to in the first declaratory clause—clause 1. In due course—it will be much later on—I shall want a separate vote on new clause 8.
	The amendment proposed by my hon. Friend the Member for Stone (Mr. Cash) can be divided on immediately, so if he wants to press the matter I shall support him. The sovereignty of Parliament and the rule of law should be defined in the Bill, and my hon. Friend is right to say that the sovereignty of Parliament is the basis of the rule of law, and to define the rule of law as involving in part—he uses the words "in particular"—the sovereignty of Parliament and the courts.

William Cash: It is unnecessary to add to what I have said already. I certainly want to press the amendment to a Division.

Question put, That the amendment be made:—
	The Committee divided: Ayes 127, Noes 283.

Question accordingly negatived.
	Clause 1 ordered to stand part of the Bill.

Clause 4
	 — 
	Guarantee of continued judicial independence

Christopher Leslie: I beg to move amendment No. 18, page 2, line 24, leave out '("the Minister")'.

The Chairman of Ways and Means: With this it will be convenient to discuss Government amendments Nos. 19 to 324.

Christopher Leslie: These amendments are purely matters of drafting improvement and consistency and do not affect policy. After one sentence, I give way.

Patrick Cormack: The Minister is unfailingly courteous and always tries to help. I wanted to intervene at this stage because I have a point not of order but of substance, which I want the Minister to address. We have spent two hours of the first three hours allocated and have discussed one amendment. There has clearly been no filibustering; many Members have not taken part because they have felt that they should leave matters to those who are leading on the issue. We now have less than an hour to complete consideration of the first group of clauses. Some very important subjects will clearly not be debated. Will the Minister discuss with the Leader of the House and others responsible for deciding the programme whether we can have a fourth day on this Bill? It is absurd that whole chunks of a Bill of this magnitude, which has come to this House having been thoroughly discussed in another place, will be dispatched without anybody saying anything about them.

Christopher Leslie: We have not debated just one amendment; we have debated two separate amendments on a very big issue. What can be much bigger than the issue of the rule of law? I am not surprised that we took some time on that. However, having listened to the hope expressed by the hon. Gentleman, I shall try to be briefer so that we can make as much progress as possible. Perhaps we shall even finish consideration ahead of schedule, leaving time for other matters.

Gwyneth Dunwoody: I have been sitting quietly trying to listen to the debate. This Bill is important to those of us who are not lawyers and who are trying madly to find a way through much of the provision, which impinges fundamentally on parliamentary privilege. The point made by the hon. Member for South Staffordshire (Sir Patrick Cormack) is not about the content of individual amendments; it goes rather deeper. If such a Bill is programmed—as this one is—the House will not debate it. My hon. Friend has called in aid debates in another place, not once but several times. It is bizarre that in seeking to amend a House of Lords Bill the House of Commons is praying in aid the House of Lords. We should be debating the Bill here.

Christopher Leslie: Indeed we are debating it here. We are at the beginning of our extensive debates on these matters. I say to my hon. Friend that I will try to be as brief as possible to allow as wide a debate as possible.
	The amendments replace references to "Minister" with "Lord Chancellor" throughout the Bill. The Bill as introduced into the Lords last year sought to abolish the office of Lord Chancellor and therefore set down many functions as the responsibility of the "Minister". Since then, we have listened to concerns about abolition, expressed here and in the other place. The Government accept the decision of the House of Lords to retain the title and formal office of Lord Chancellor. Whether the post holder is called "Secretary of State for Constitutional Affairs", "Lord Chancellor", or has both titles, is not of great significance.
	As I said on Second Reading, what matters most is the substance of the post, the nature of the job, and whether it is reformed so that the post holder no longer has conflicting duties. If the role of the head of the judiciary can pass to the Lord Chief Justice, and with it many of the judicial functions that are incompatible with the political functions of a Cabinet Minister, the office of Lord Chancellor can continue in that substantially reformed way. The Bill therefore retains the office of Lord Chancellor, but in a significantly altered and more appropriate form. To ensure that the Bill's terminology is consistent, the Government amendments replace references to the Minister with references to the Lord Chancellor. They ensure that it is immediately clear to everyone who reads the Bill that the Lord Chancellor is the Minister responsible for exercising those functions, so they do not need to cross-refer to another part of the Bill. That follows the precedent that functions vested in the Lord Chancellor in statute are, for the sake of clarity and ease of understanding, vested specifically in that office rather than in "the Minister".

Oliver Heald: As I have already mentioned, the decision to abolish the post of Lord Chancellor was misconceived. It was a back-of-the-envelope decision made on the back of a reshuffle by cosy chums sitting around in No. 10, without the usual safeguards of consultation and measured consideration in Cabinet. It was clearly wrong to try to abolish such a pivotal role in that way, and the amendments represent recognition by the Government that the Prime Minister got it wrong. Conservatives and Members in the other place were right to battle hard to restore the Lord Chancellor's role and ensure that that ancient but important post was not abolished as planned. I therefore welcome the fact that in numerous instances throughout the Bill the word "Minister"—the Lord Chancellor would simply have been a Constitutional Affairs Minister—has been replaced with the words "Lord Chancellor", which reflects the success of my noble Friends in another place.

Paul Tyler: I, too, welcome the clarification in the Bill, which reflects the views of Members from all parts of the other place and puts into effect the requirements of the concordat between the Government and the higher judiciary. I have some sympathy with the view expressed by Shakespeare that a rose
	"By any other name would smell as sweet."
	I am not sure how we would apply that to the post of Lord Chancellor, but the semantic significance of the amendments goes beyond the title given to his particular functions. On Second Reading, my hon. Friend the Member for Somerton and Frome (Mr. Heath) was concerned that by retaining the title of Lord Chancellor we were sending the message that there was not any change in his functions within the Executive and the hierarchy of the judicial system. That is not the case, so I regret that it has not been possible to find a better title. Indeed, my hon. Friend and others have argued that the Bill provided an opportunity to look at the boundary between the Department for Constitutional Affairs—Decaff, as it is commonly known, because it is said to be all froth and no substance—and the Home Office. This could have been the time to look more substantially and strategically at they way in which those two Departments interrelate. Logic, however, now dictates that references to the Minister throughout the Bill should be replaced with references to the Lord Chancellor. That is the settled will of Members from all parts of the other place and, I suspect, of Members of the Commons. I hope that we will now progress as fast as possible to the more substantial issues before us.

Patrick Cormack: I support the Government amendments, and I am delighted that the Government have seen sense and conceded the power of our arguments. References to the Lord Chancellor now appear in the Bill, but I think that the Minister would agree that it is important that people outside should not be confused. There is nothing confusing about changing some of the Lord Chancellor's responsibilities. That has happened before—in the middle ages, the Lord Chancellor was frequently a bishop or senior cleric—but if he has a dual title, as at present, people will get mixed up. We should not have a dual title for the man or woman who fulfils the role of Lord Chancellor. I should be delighted if a woman became Lord Chancellor—that would be a very good idea if we chose the right person—but whoever bears that important title, it should not be subsumed by another title.

Jonathan Djanogly: My hon. Friend has made an important point about the confusion that has been engendered. That is not helped by the fact that the Government did not include these proposals in either their 1997 or 2001 manifesto.

Patrick Cormack: Indeed, that is the case, and the events that led to the introduction of the proposals have been rehearsed many times. The Prime Minister was suddenly confronted with what turned out to be the temporary retirement of the right hon. Member for Darlington (Mr. Milburn). He also had some sort of altercation with the then Lord Chancellor—one day, when memoirs are written, perhaps we will know precisely what did, or did not, happen. The proposals, however, were introduced without proper consideration or deliberation. As we said on Second Reading, the substance of the Bill should have been the subject of a White Paper and preferably a Green Paper and draft legislation as well. All that, however, is history.

Oliver Heald: Does my hon. Friend agree that that is particularly important, as it has emerged that Sir Thomas Legg, the permanent secretary in 2000, warned against dismantling the role of Lord Chancellor, and pointed to the numerous difficulties that that would create?

Patrick Cormack: Sir Thomas Legg has a reputation for wisdom, which is not shared by many members of the Government. We do not, I emphasise, want confusion. I am delighted that the Minister, in his winsome and emollient manner, moved the amendment. I just hope that he accepts the logic of the changes to the wording of the Bill, and will pass the message on to No. 10 that we do not want confusion visited upon us in future by having two titles for one Minister.

Richard Shepherd: I support the arguments made by my hon. Friends the Members for North-East Hertfordshire (Mr. Heald) and for Huntingdon (Mr. Djanogly), as well as by the hon. Member for North Cornwall (Mr. Tyler). I appreciate the fact that the Government have removed the words "the Minister" and re-emphasised the role of the Lord Chancellor. I would like to address amendments Nos. 7 and 8, but principally amendment No. 7, which asks for the deletion—

Sylvia Heal: Order. We are discussing Government amendment No. 18.

Richard Shepherd: I see, we are on a separate group. Forgive me, Madam Deputy Speaker.

Edward Garnier: While there is a hiatus, may I reinforce the point made by my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack)? I accept that the Minister is part of the Department for Constitutional Affairs, but we live in a strange country. The ministerial head of the Department could easily be called Lord Chancellor. I presume that, once the Bill is enacted, the title of Lord Chancellor will disappear for the transitional period, although that sounds very strange. Once that transitional period ends, however, let us celebrate our illogicality and have a Lord Chancellor who heads a Department with a different name.

Christopher Leslie: There is not much further to add now, other than to say that I am glad that there seems to be a consensus that it is right to include these amendments and then move on to other more substantial parts of the Bill.
	Amendment agreed to.

William Cash: I beg to move amendment No. 7, in clause 4, page 2, leave out lines 35 to 42.

Sylvia Heal: With this it will be convenient to discuss amendment No. 8, in clause 5, page 3, leave out lines 24 to 31.

William Cash: Clauses 4 and 5 will impose a duty on the Lord Chancellor and Ministers to uphold the independence of the judiciary. Of course, as I mentioned earlier in relation to the whole Bill, that duty would be enforceable by the judiciary itself as a matter of statute in terms of judicial review. In this context, I would assert that that in itself represents a radical gear change in the interpretation of statute law and, indeed, in the principles to which I shall refer in a moment. Yes, of course, there must be judicial independence—I would not want anyone to suppose that amendments Nos. 7 and 8 would affect that principle in any way—but there is also the Oath of Allegiance and salaries, to which are connected security of tenure and other matters, including the role of judges as embedded in the Act of Settlement 1700. In fact, as we well know, a range of conventions, rules and principles have been enunciated over the past several hundred years and are accumulated in the current state of the rule of law and in the specific question of judicial independence.
	Clause 4(7) goes too far, and the same applies under amendment No. 8, with respect to Northern Ireland, where much the same sort of thing obtains, although I have no doubt that Northern Ireland Members will want to make their own contribution on its application to Northern Ireland itself. I will therefore confine my remarks primarily to the issues that apply to the United Kingdom, rather than to Northern Ireland.
	Scotland is mentioned in clause 4(2), which states:
	"Subsection (1)"—
	on the duty of the Lord Chancellor and others to uphold the continued independence of the judiciary—
	"does not impose any duty which it would be within the legislative competence of the Scottish Parliament to impose."
	Again, I would prefer to leave those matters to any Scottish Member who may wish to intervene—I see that the Advocate-General for Scotland is here—but subsection (2) must be considered in relation to the background of the supremacy of the United Kingdom Parliament. It is well established that the Scotland Act 1998 is ultimately subject to the question of whether or not the United Kingdom Parliament might decide to amend or repeal any part or all of the Scotland Act 1998 itself. That may be a matter of great contention in Scotland, but I believe that it represents good constitutional law in so far as the United Kingdom Parliament is concerned.
	Clause 4(7) and the definition contained in subsection (8) go too far, because they would confer judicial independent in respect of international treaties. I believe that that would be to make radical, new law and entrench it in statue, given that those provisions would apply to treaties irrespective of whether they were endorsed by statute. Indeed, as I have mentioned already, we must remember that Lord Diplock made it clear in the commissioner of Excise case of 1967 that statute can, in fact, break treaties.
	I shall now address the question of what the words mean. Subsection (7) says:
	"In this section 'the judiciary' includes the judiciary of any of the following"—
	of course it lists the Supreme Court, but it then refers to
	"any other court established under the law of any of the United Kingdom".
	I do not seek to knock out those words, for obvious reasons, although I have the gravest reservations about their necessity in the light of the development of our constitutional position. I have a certain sympathy, to say the least, with what my hon. and learned Friend the Member for Harborough (Mr. Garnier) said with regard to clause 1. Attempting to include all these things in statute and making them subject to judicial review is, in itself, an extremely unfortunate and dangerous course. However, that raises a particular question in respect of judicial independence: quis custodiet ipsos custodes? After all, the judges will be the ones who determine the question of judicial independence under the duty imposed by clause 4. What are we to do, therefore, about the reference to "any international court" in subsection (7)(c)?
	Subsection (8) says:
	"In subsection (7) 'international court'"—
	here is the definition—
	"means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of judicial nature, in pursuance of . . . an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or . . . a resolution of the Security Council or General Assembly of the United Nations."
	I find that a radical departure from the existing state of affairs. Indeed, it is clear that the European Court of Justice and/or the European Court of Human Rights at Strasbourg are included in subsection (8), given the absence of any words to exclude them. In fact, subsection (8) does not refer to the International Criminal Court, and I rather think that that will be included, too. I find it astonishing that subsection (8) refers to a
	"court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of . . . a resolution of the Security Council or General Assembly of the United Nations."
	I look forward to hearing what the Minister has to say by way of justification.

Patrick Cormack: I am following my hon. Friend's comments with great interest and I can understand where he is coming from when we look at subsection (8)(a), but is he seriously suggesting that this country should flout Security Council resolutions when so much of what we have done in international affairs recently has been based on adhering to them?

William Cash: In a sense, that is my point. Indeed, in so far as it is clear that our existing arrangements respect those international tribunals, that is one thing, but it is quite another thing to impose the duty on the Lord Chancellor and other Ministers of the Crown as a matter of statute law to uphold the continued independence that arises in that context. It is a step change, which troubles me. If we, as a nation, decided that we did not support a particular Security Council resolution in relation to an international court, aspects of it might be applicable to us in the United Kingdom, in which case we might find that we are not prepared to accept the setting-up of that tribunal, still less the deliberations, conclusions and judgments passed by that court.

Edward Garnier: Clause 4 is another example of clumsily drafted legislation, and the fact that my hon. Friend the Member for Stone has had to pose those questions through his amendment exemplifies that point. Clause 4 could be intended to prevent the Lord Chancellor—under the Government's regime, the Lord Chancellor will not necessarily be a senior lawyer, still less a Member of the House of Lords, but could be a highly political Minister on the make—and other political Ministers from seeking to influence British-appointed members of international courts or courts set up on an ad hoc basis under a United Nations resolution, such as the courts in Sierra Leone or Rwanda. In that case, the Lord Chancellor, who will not be a Member of the Lords or a member of the judiciary, would be inhibited by statute from ringing up Mr. Justice Somebody-or-Other and saying, "Look, we would find it politically convenient if you were to reach this particular conclusion in this international court." That is the most charitable explanation that I can provide for clause 4, but my hon. Friend the Member for Stone might have a more or less charitable explanation.

Sylvia Heal: Order. I hope that future interventions will be shorter than that one.

William Cash: That question should be addressed to the Minister, and I am also puzzled for the same reasons.
	Clause 4(5) states:
	"The Lord Chancellor and . . . Ministers . . . must not seek to influence particular judicial decisions thorough . . . special access to the judiciary",
	That is not the same as how the judiciary—I am thinking of the European Court of Justice—interpret a law under which they claim a superior jurisdiction to not only our courts, but our laws and constitutions. A severe danger exists that that wording could leave open the probability that upholding the continued independence of the judiciary—in that case, the ECJ—and dovetailing it with the European Union Bill, which we are about to consider, could lead us into some extremely dangerous constitutional situations.
	The Bill will probably displace the assumption that the judiciary in this country are obliged to give effect to the latest enactment of the European Communities Act 1972, if, as I put it to the Prime Minister the other day, the European constitution were turned down in a referendum and it were necessary to repeal the European Bill, as enacted.
	In a nutshell, if my amendment were accepted, it would not change the existing situation. I have no idea why clause 4, which will take us into extremely deep and dangerous waters, has been included in the Bill, and I look forward to hearing what the Minister has to say. The Minister owes it to the House of Commons to be entirely candid as to why clause 4 has been included, because in my opinion it would be better if it were removed.

Oliver Heald: My hon. and learned Friend the Member for Harborough (Mr. Garnier) has already expressed my concerns better than I will.
	My hon. Friend the Member for Stone (Mr. Cash) is concentrating on a situation in which conflict occurs between courts. I appreciate that he seeks to avoid a situation in which the Lord Chancellor, other Ministers or judges are expected to uphold the independence of an international court at the expense of a local court.
	The aim of clause 4 is to ensure that each of the courts listed in subsection (7) is not subject to improper ministerial influence or denied the support that it requires in order to function. This part of the concordat, as expressed in the Bill, is designed to militate against the sort of scenario set out by my hon. and learned Friend the Member for Harborough.

Edward Garnier: My hon. Friend may correct me on this point, because he has studied the Bill at greater length than me: am I right in thinking that the judicial appointments commission will not appoint judges to the International Criminal Court or to the other international judicial bodies to which we send judges, and that a non-legal Lord Chancellor could therefore require his politically convenient appointees to go only to those international bodies? Is my hon. Friend worried that the reason why the Government included that provision is that they fear that an ignorant Lord Chancellor will attempt to do precisely that at some future date?

Oliver Heald: I agree with my hon. and learned Friend about the mischief, which is our concern. If the Lord Chancellor is a politician on the make rather than a senior figure reaching the end of their career, if they sit not in the other place but here, if they are not a lawyer and if they are very different from a traditional Lord Chancellor, such concerns will emerge.

Patrick Cormack: Have we not been placed in this position because of the peculiar programming? Clause 4 is a logical consequence of clause 3, which demands that the Lord Chancellor be legally qualified. The person with whom we are dealing in clause 4 is therefore legally qualified, but we will debate clause 3 later, which makes nonsense of the whole Bill.

Oliver Heald: It is hard to argue with my hon. Friend's point. Perhaps he will take it up with the Minister in due course.
	Our Ministers and judges should uphold the independence of all those categories of courts. As a country, we have a proud tradition of supporting the independence of the judiciary in international tribunals and courts, of which there are many examples, some of which were mentioned by my hon. Friend the Member for Stone. Given the history and importance of our involvement in a range of courts and tribunals, it would be wrong to do anything that suggests that we do not want to uphold the independence of those courts and that those courts are open to ministerial interference or interference through the non-provision of the necessary logistical support.
	On this occasion, I find it difficult to support the amendment moved by my hon. Friend the Member for Stone. I do not want to derogate from the argument that I made earlier—the UK Parliament is sovereign and should be sovereign, and our courts should interpret our laws accordingly. I hope that my hon. Friend will consider his amendment and perhaps seek to find other ways in which to achieve his laudable intentions.

Paul Tyler: I am glad to hear the hon. Gentleman's comments, as I, too, feel that clause 4 is critical to the whole Bill, and the amendments would dilute it. It is important to recall the context of clause 4 and the specific requirements placed on the Lord Chancellor, which it is extremely important for us to reiterate this evening.
	The clause has two such requirements, extending to subsection (8), to which I shall refer in a moment. The first is the insistence that no opportunity of special access to exert pressure on any elements of the judiciary should be used. I take the point made by the hon. and learned Member for Harborough (Mr. Garnier) that one can imagine circumstances in which an appointee to some international body or tribunal who will not go through the normal judicial process could be under some form of influence or obligation to a political Minister. It is important that we recognise that.
	It seems to me that the hon. Member for Stone (Mr. Cash) has tabled one of his bogeyman amendments, in which there is always somebody in Brussels, or some devilish foreigner, whom we must do down and keep in their place. He is making a mountain out of molehill, if one can do that with a bogeyman. He is trying to imply that there is some sort of inflated recognition in the subsection for the non-domestic court process. I do not read it like that—I simply read it, as the hon. and learned Member for Harborough said, in the terms that it is a proper precaution to be placed in the Bill, to ensure that the Minister does not have special access. We are advised that that need not in any way impede the way in which he operates to make sure that the public interest in matters relating to the judiciary, at any level of the administration of justice, is properly represented. That seems to me to be a perfectly proper approach.
	If there is a problem with the wording, that is down to the Minister, and no doubt he will defend it—I hope that he will do so in a moment. I see some practical advantage, however, in making it clear in the Bill that we will not tolerate political interference with the judicial process, wherever that may lie.

David Heathcoat-Amory: Clause 4 seeks to give statutory form to the important principle of judicial independence, and who could possibly be against that? In fact, I have misgivings about the entire Bill, because taken as a whole, it will have the effect over time of politicising the judiciary, particularly allied to the advance of international human rights legislation. When judges are called on to make difficult and sensitive decisions about the right to life, to freedom of expression or to privacy, they are drawn down a political road. We have seen that in the United States, where appointments to the Supreme Court are matters of great partisan political interest. I hope that we can avoid that in this country, but the Bill does nothing positive to entrench what until now we have understood to be the independence of the British judiciary.
	My support for amendments Nos. 7 and 8 is based on a narrower consideration. It seems to me that the definition of an international court includes the European Court of Justice. If not, the Minister must stop me now—if it is somehow excluded, the rest of my remarks fall. I take it that the definition in the clause of an "international court"—
	"a court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of . . . an agreement to which the United Kingdom . . . is a party"—
	obviously includes the European Court of Justice.
	The problem about the independence of that Court is that it will be undermined by the European constitution. I draw the attention of the Committee to article 1–18, which lists the institutions of the European Union, including the Court of Justice of the European Union, as the ECJ will become known, the Council of Ministers and the European Commission—the executive branch of the European Union. The provision then states:
	"The Institutions shall practise full mutual cooperation".
	Therefore, the executive branch of the EU is to practise full mutual co-operation with the judicial branch. That is a fairly startling defiance of the principle of separation of powers, because it also applies in reverse: the European Court will have to practise full mutual co-operation with the executive.
	I am a member of the European Scrutiny Committee, and we are currently taking evidence about the European constitution. A number of witnesses of great renown have come before us: people of judicial training, both in constitutional and international law, from more than one European country. We have asked them what they understand by that clause and those words. They are very worried; some of them are baffled. It is not an accident, however—those words were slightly changed during the negotiations in the Convention on the Future of Europe, which I witnessed. They are therefore deliberate. They are not permissive—they do not say that the European Court of Justice "may" co-operate with the executive but that it "shall". It is therefore a mandatory instruction. Our witnesses could give no other example in the world of a constitution that apparently undermines the independence of a court so dramatically.

Gwyneth Dunwoody: I would find this a lot more horrifying were I not already convinced that the European Court of Justice is a wholly political organisation. All the appointments during my time in the European Parliament were made on the assumption that the judge concerned was of a particular political colour. I therefore find it difficult to accept that this has suddenly become a problem; it has been so since the creation of that entirely political court.

David Heathcoat-Amory: The hon. Lady is right. It is an activist court, which takes as one of its duties the upholding of the European ideal and the advancement of European integration. I therefore accept what she says.
	The European constitution, however, provided an opportunity to entrench a different doctrine of true independence, along the lines of the separation of powers, as we have discussed in our consideration of the Bill. That makes it all the more worrying to have written into the constitution a provision that obviously undermines that independence. The relevance for the Bill is obvious. We are giving the Lord Chancellor, and future Lord Chancellors, a duty to defend the independence of foreign courts and judges in those courts, yet the Government have signed a European constitution that breaches that independence. Therefore, my question to the Minister is: what will happen? Why are we giving the Lord Chancellor a duty to be independent, and why have we signed a constitution that undermines that independence?

Edward Garnier: Has the European Scrutiny Committee, in its evidence sessions, heard any evidence about the meaning of the expression "full mutual co-operation"? I understand my right hon. Friend's argument that that could mean "do as you're told", but it might also mean that the two respect each other's separate roles. I am not sure whether we are just having a semantic argument, or whether there is some evidential basis for the concerns, which I can well understand.

David Heathcoat-Amory: I am not a lawyer, but I can read English and I do understand—I think—the following sentence:
	"The institutions shall practise full mutual co-operation".
	That would appear to mean that the judiciary must co-operate with the executive, but is that not a breach of the separation of powers, as understood by my hon. Friend the Member for Stone (Mr. Cash)? There may be an innocent explanation, but such an explanation was not advanced by the expert witnesses who came before the European Scrutiny Committee—quite the reverse. They said that either this was indeed a serious breach, or that hopefully—as one witness put it—the provision will simply be ignored. Well, I am not quite so innocent as that. When a provision is written into a constitution that shall have primacy over the law of all member states, we must take it seriously.
	I am not being excessively mischievous or pessimistic in seeing—let me put it no higher than this—a problem, and the problem for us this evening is that this provision conflicts with the Bill. As I have said, although I am not a lawyer I can read, and we are about to pass into law a duty for the Lord Chancellor "to defend" judicial independence. More than that, the judiciary—in this instance, the European Court of Justice—will
	"have the support necessary to enable them to exercise their functions",
	so the necessary resources will have to be provided. In every way, therefore, we are supporting an independence denied by the European constitution.

Patrick Cormack: Of course we do not yet have the European constitution—and if my right hon. Friend and I have anything to do with it, we will not have it. The arguments that he is advancing this evening are added ammunition in the battle against that pernicious document—but putting that to one side, does he agree that clause 4 is not as damaging as my hon. Friend the Member for Stone (Mr. Cash) suggested in his speech?

David Heathcoat-Amory: I will be marching with my hon. Friend to secure a no vote on that pernicious document. He is right to suggest that the best way to prevent this conflict is to take out the European constitution, but the only means at my disposal this evening is removing the relevant words from the Bill. This House should not legislate to contradict itself.

Oliver Heald: Surely the Bill provides the good bit. Obviously, one can have many objections to the Bill, but clause 4 states that the Lord Chancellor should stick up for the independence of the judiciary and take the sort of steps for which my right hon. Friend is arguing.

David Heathcoat-Amory: I do not altogether accept my hon. Friend's assurances. To echo what my hon. Friend the Member for Stone said, we can envisage future conflict between different judicial systems, and in that case, I would rather uphold the independence of our domestic courts than put them on an equal footing with international courts.
	The main purpose of my brief remarks has been to find out from the Minister how he intends to resolve this problem. He and his Government are in favour of the wording both in the Bill and in the European constitution, and that conflict needs to be resolved this evening.

Andrew Hunter: I will be very brief. I have some sympathy for the amendments tabled by my hon. Friend the Member for Stone (Mr. Cash) and the arguments that he advanced in support of them, but in reaching a conclusion on them, it might be helpful if the Minister answered the following two points. First, can he explain why the list of office holders in clauses 4(1) and 5(1) is so limited? Why does the Bill not impose a duty to guarantee the continued independence of the judiciary on other executive officers? Secondly, I am somewhat confused by the phrase "special access". For example, what special access do the First Minister and Deputy First Minister in Northern Ireland have to international courts that might so undermine their independence that lines 24 to 31 in clause 5 are needed? The right hon. Member for Upper Bann (Mr. Trimble) might like to comment on that.

David Trimble: While I was First Minister I had no special access to any member of the judiciary—at home or abroad. What puzzles me about this provision is its stating that one must not misuse special access. What about normal access?

Several hon. Members: rose—

Sylvia Heal: I call Sir Patrick Cormack.

Patrick Cormack: I was not quite sure whether that was an intervention or a speech. We have heard two very brief speeches, and I shall try to make a third, because I want to hear what the Minister has to say.
	I want to revert to the narrow but important point that I made in an intervention. I am tolerably comfortable with the clause, but only if the holder of the office—on whom enormously onerous responsibilities will be placed, by implication and by direct injunction in the clause—is sufficiently well versed in the law to be able to understand all these matters. That underlines the point that the Lord Chancellor should indeed be removed from the hurly-burly of everyday politics—to me, that means sitting in the other place—and should be a lawyer of considerable experience and distinction. I am baffled as to why we are going to deal with that issue, which is addressed in clause 3, after considering clause 4. I want the Minister briefly to acknowledge the importance of the point that I am making when he responds to those made by others.

Richard Shepherd: I, too, have difficulty with this provision. I am not sure in what way the Lord Chancellor can uphold the continued independence of the members of any international court—a point that applies, as has been said, to the putative European Court of Justice as defined in the European constitution, but also to the European Court of Human Rights. The Lord Chancellor has no role in the appointment of the overall judiciary of that court, yet it will give judgment directly on many of the issues confronting this nation. I am therefore very nervous about the inclusion of such a provision.
	Of course many such courts, the validity of which it is difficult to recognise, are set up by prerogative power; their nature has not been established through the legislative process. I have a list of them, but I shall not read it out, given the lack of time and the need for the Minister to explain the reasoning behind the provision. In what way will the Lord Chancellor, or any Minister, affect the appointments to those international courts, and why are we using prerogative power through the back door to sign up to them? There is a further, wider principle, which the hon. and learned Member for Redcar (Vera Baird) and I have often discussed. Should not many of these treaties, which contain within them a legislative process, be legislated for through this House, so that we know what powers we are giving and to whom?

Christopher Leslie: We have covered a number of different points, although I am not entirely convinced that all of them related to clauses 4 and 5, the latter of which deals with the provision as it affects Northern Ireland. That said, the points made were, of course, in order. The clauses set out clearly the responsibility of the Lord Chancellor and other Ministers of the Crown to uphold the continued independence of the judiciary. In answer to the hon. Member for Basingstoke (Mr. Hunter), all Ministers of the Crown are covered in that context. As the hon. Member for South Staffordshire (Sir Patrick Cormack) and Conservative Front Benchers have said, that is a pretty unobjectionable goal; indeed, it is a wholly admirable ambition.
	Amendments Nos. 7 and 8 would limit that duty by removing international courts from the definition of "the judiciary". I shall explain briefly why that would not be appropriate. The removal of those subsections would not affect in any way the UK's participation in any agreement with any international courts that have been established, or alter in any way their jurisdiction over the United Kingdom. Even if that was the intention of the hon. Member for Stone when he tabled the amendments, they would not achieve it. There is no sound justification for limiting our respect for the international judiciary in that way. Just as Ministers should uphold judicial independence in this country, so they should uphold the independence of judges in properly constituted international courts and tribunals, wherever they may be. The judges of both types of court should be treated in the same way.

Paul Tyler: I understand the point that the Minister is making, but is the position not even worse than that? The hon. Member for Aldridge-Brownhills (Mr. Shepherd) is right to say that those who are appointed as British representatives in any court may be appointed by royal prerogative rather than through the judicial system, so they may be more susceptible to pressure. If we removed the provision, the implication would be that it was acceptable to exert pressure on them.

Christopher Leslie: Exactly. It would be perverse to argue that we should respect the judicial independence of judges in this country, but that Ministers should be free to undermine the independence of judges in international courts elsewhere.

Edward Garnier: The Minister almost persuaded me that he had an argument, but he ruined it with that terrible answer to the hon. Member for North Cornwall (Mr. Tyler). Until now, nobody ever thought a Lord Chancellor would seek to influence a particular judge, in this country or elsewhere, in the making of a judgment or by use of special or normal access. The clause must go into the Bill because the Government intend to do something different to the nature of the relationship between the appointers of judges and the judiciary. The Minister should not argue that by removing the clause we would be doing something bad. Lord Chancellors have not sought to misconduct themselves in relation to judicial independence—

The First Deputy Chairman: Order. Once again, I remind the hon. and learned Gentleman that interventions are meant to be brief.

Christopher Leslie: The hon. and learned Gentleman's argument is ridiculous. The purpose of the clause is to enshrine the protection of judicial independence. I pointed out, as did the hon. Member for North Cornwall (Mr. Tyler), that it would be perverse to remove the provision and leave a gaping hole in respect of judges in international courts. I am sure that even the hon. and learned Member for Harborough (Mr. Garnier) can see that.
	To answer an earlier point, in some cases British judges sit on international courts. Are they to have their independence protected when sitting in the UK, but not when sitting on an international court? The credibility of clauses 4 and 5 depends on their covering all judicial decisions affecting the United Kingdom. The same standard needs to apply to the treatment of all judges, regardless of which forum they sit in. It makes no sense to afford less protection to some judges than to others.
	The right hon. Member for Wells (Mr. Heathcoat-Amory) spoke about how we might in future be able to reconcile concepts of mutual co-operation with concepts such as judicial independence and separation of powers. I do not see any inconsistency between concepts of co-operation and concepts of independence in other legislation.

William Cash: Is the Minister prepared to say that as he understands it, the positive duty being imposed on Ministers would in no way create a situation in which there was any granting of an assumption that those who were adjudicating in international courts, including the European Court at Strasbourg and the one in Luxembourg—the European Court of Justice—in the interpretation that they place on legislation in the framework of the European Union and the European convention on human rights? Can the Minister give me satisfaction on that point?

Christopher Leslie: In so far as I follow the point, it would be for UK legislation to give the legal basis for judicial decisions affecting domestic law, independent of which court was making those decisions. I do not understand the point that the hon. Gentleman is making.

David Heathcoat-Amory: The Minister presumably would not dream of placing an obligation on a British court to co-operate fully with the Government if that court were deciding on a case in which the British Government were a party, so how can he place such an obligation on the European Court of Justice?

Christopher Leslie: I do not have the draft European constitution before me, but I am not sure that there are requirements for particular co-operation in specific individual cases. It may be possible for the judiciary, the legislature and the Executive to co-operate in partnership, as we do in this country. We signed up in the concordat to the idea that partnership does not exclude independent judicial decision making in particular cases. That is the fundamental point.

David Trimble: Is it not the case that clauses 4 and 5 impose a duty to uphold the continuing independence of judges individually? That presupposes that judges already are independent. The clauses do not impose a duty to pretend that they are independent if they are not. Therefore, if some international tribunal is clearly not independent in terms of appointments to it, its independence cannot be upheld.

Christopher Leslie: Indeed. Clause 4(8) specifies that any international court established by treaty to which the United Kingdom is a party, or by other organisations in which the United Kingdom takes part, is to be independent. Such courts and tribunals are referred to in the Bill as legitimately organised and established. It would be wrong to allow the amendments to remove respect for and protection of judicial independence in international courts, as set out in the Bill. I hope the Committee will reject the two amendments.

William Cash: In the light of the discussions that we have had and the arguments that I have heard from the Opposition Benches, I still have grave concerns about the drafting of the clause. However, after careful consideration I have decided that we may be able to fight this battle another day, so I beg to ask leave to withdraw the amendment.
	Amendment, by leave, withdrawn.
	Question proposed, That the clause, as amended, stand part of the Bill.

Jonathan Djanogly: I am pleased to have the opportunity, albeit a brief one, to discuss the guarantee of continued judicial independence in the context of the Lord Chancellor's role, and I start with a quote:
	"The Lord Chancellor provides a counter-balance to the judicial branch against the centralised power of government and Parliament. At the same time he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with a full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature."
	Those were not the words of a Conservative commentator or an excerpt from an outspoken critic of the Bill. The Minister was trying to remember where they came from—they were the words of the Government when they defended the office of the Lord Chancellor before the Council of Europe in 2002.
	While giving evidence to the Select Committee on the Lord Chancellor's Department a year later, the then Lord Chancellor, Lord Irvine, said that
	"there is a bit of uniqueness about the Lord Chancellor's Department, which is that its business is dealing with an arm of the state called the judiciary. It is part of the separation of powers. We deal with, as I say, an arm of the state within the separation of the powers and this arm of the state values, and rightly, its judicial independence above all else. It does not want to be bullied by the executive. It believes that its function is to stand between the citizen and the state and to be absolutely robust in deciding when the state has acted contrary to the law."
	Yet now, the Government wish abruptly to change the position on the office of Lord Chancellor—albeit that, grudgingly, they will not now change the name—and toss a long-standing part of our Government into the dustbin of history.
	It is my belief that the position is too important to be restructured on the basis of a purely political premise masqueraded by the Government under the name of constitutional reform. The position of Lord Chancellor is an ancient one. Some of the most important statesmen in our history have served as Lord Chancellor. Under the Bill, it is now proposed that there will be no requirement that the Lord Chancellor will be a lawyer or have any law experience. Supposedly, according to the Government, a layman has more ability to advise a Prime Minister on legal affairs than a judge who has sat on cases and has training in the law. The Lord Chancellor's unique role in all three branches—Executive, judicial and legislative—gives him a unique opportunity to serve independently and non-politically.

Patrick Cormack: In the Bill as it stands, there is a requirement that the Lord Chancellor should be a lawyer, as set out in clause 3. Is it not therefore all the more important, in view of the sensible remarks that my hon. Friend is making, that clause 3 does indeed stand part of the Bill?

Jonathan Djanogly: My hon. Friend makes a very important and pertinent point. I have been attempting to lay the ground for a discussion of clause 3 later.
	In the short time that remains, I wish to mention that, in addition to clause 3, if there is a single action that could virtually guarantee the independent status of the role of Lord Chancellor it would be the disqualification of the Lord Chancellor from holding any other ministerial office. Perhaps we can deal with that issue when we come to clause 3.
	I consider that the Government have paid too little attention to the need to guarantee judicial independence. We will return to these issues when we debate clauses 2 and 3.

Christopher Leslie: The hon. Member for Huntingdon (Mr. Djanogly) has given good reasons why the clause should stand part of the Bill. It is a point of mutual agreement in all parts of the Committee that we want to provide an unequivocal guarantee of continued judicial independence. That guarantee is binding on all Ministers of the Crown and all those with responsibility for matters relating to the judiciary or the administration of justice. Through the clause, we are seeking to embed in statute the principle of judicial independence, which all in the Committee rightly regard as being of paramount importance in our constitution. Clause 4 does exactly that, and it also imposes particular duties for the purpose of upholding continued judicial independence. First, Ministers of the Crown must not seek to influence particular judicial decisions through any special access. Secondly, the Lord Chancellor must consider the need to defend continued independence throughout.

Edward Garnier: I just want to record that it is a shame—indeed, it is more than a shame—
	It being three hours after the commencement of proceedings on the Bill, The Chairman put the Question already proposed from the Chair, pursuant to Order [this day].
	Question put and agreed to.
	Clause 4, as amended, ordered to stand part of the Bill.
	The Chairman then proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour.

Clause 6
	 — 
	Representations to Parliament

Amendments made: No. 1, in line 41, leave out 'But'.
	No. 2, in line 43, at end insert—
	'(3)   In relation to Northern Ireland those matters do not include transferred matters within the legislative competence of the Northern Ireland Assembly, unless they are matters to which a Bill for an Act of Parliament relates.
	(4)   In subsection (3) the reference to transferred matters has the meaning given by section 4(1) of the Northern Ireland Act 1998 (c. 47).'.—[Mr. Leslie.]
	Clause 6, as amended, ordered to stand part of the Bill.

Clause 7
	 — 
	President of the Courts of England and Wales

Amendments made: No. 19, in page 4, line 10, leave out 'Minister' and insert 'Lord Chancellor'.
	No. 20, in page 4, line 13, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]
	Clause 7, as amended, ordered to stand part of the Bill.

Patrick Cormack: On a point of order, Mrs. Heal. My hon. and learned Friend the Member for Harborough (Mr. Garnier) just said in an extremely brief speech that something was a shame. To quote my favourite entertainer, Stanley Holloway, it is a shame and a sin that this Committee has not had the opportunity to discuss clauses 6 or 7 in the first three hours allowed for the Bill. I realise that you can do nothing about this matter tonight but could you, on behalf of the House, speak to Sir Alan and Mr. Speaker and see whether any representations can be made to those who draw up programmes to ensure that there can be some built-in flexibility, so that when the House is faced with a major constitutional Bill of this nature, it does not end up without any opportunity to discuss significant parts of it?

Edward Garnier: Further to that point of order, Mrs. Heal, I wish to explain to you that what I thought was a shame was precisely what my hon. Friend has just said. Vast sections of this important Bill will never be discussed by the House. What is the point of the House if it is not allowed to discuss anything that the Government wish to impose on the people of this country?

The First Deputy Chairman: The remarks that have been made are now on the record, but as has been suggested, I have no authority to make any such changes.

Oliver Heald: On a point of order, Mrs. Heal. The role of the Master of the Rolls and the effect of the provisions on his role in the courts of England and Wales has not been mentioned. Perhaps it would be possible for the Minister to consider whether, in commenting on some of the other clauses that deal with judicial matters, he might reflect on the position of the Master of the Rolls.

Clause 5
	 — 
	Guarantee of continued judicial independence: Northern Ireland

Christopher Leslie: I beg to move, That the clause stand part of the Bill.
	Clause 5 substitutes a new section for section 1 of the Justice (Northern Ireland) Act 2002, to ensure that provision made by that Act in relation to Northern Ireland is consistent with provision made in clause 4. Section 1 of the 2002 Act has not yet been commenced, and it already contains provision designed to place those with responsibility for the administration of justice in Northern Ireland under a duty to uphold the continued independence of the judiciary.
	New section 1 specifies and extends the range of persons on whom the duty is imposed. Under the provision, the First Minister and the Deputy First Minister, Northern Ireland Ministers, and anybody with responsibility for the judiciary or administration of justice specific to Northern Ireland will be subject to a duty to uphold continued judicial independence. New section 1 also provides that, in upholding judicial independence, Ministers must not seek to influence particular judicial decisions through any special access to the judiciary. As I said earlier, we concluded that the term "special access" is essential to ensure that Northern Ireland Ministers remain free to seek to influence a particular judicial decision when appearing as a party to a court case. That answered the points raised by the right hon. Member for Upper Bann (Mr. Trimble), the former First Minister, who asked about the normal access arrangements. We need to ensure that the Administration would quite properly be able to make its own representations in a normal case in the normal way, if it were involved as a party to the case.

David Trimble: I appreciate that the Minister is trying to respond to the point that I made, which I was going to repeat. What he is saying, however, seems rather strange. He is referring to enabling the First Minister or other Ministers to make representations if they are parties to an action, but that is not access. I think that the word "access" has a different meaning. There is still a problem in using the term "special access", because it must be special in contradistinction to other things. Representation is quite different from access.

Christopher Leslie: Even then, representation in a court is also access to it. We hope that the phrase "special access" strikes the correct balance between Ministers' legitimate activities while protecting the independence of the judiciary and ensuring that when there are special circumstances in the course of their duties requiring access to Ministers, those cannot be abused. Moreover, by virtue of clause 5(2), the new duties imposed by new section 1 to the 2002 Act have UK-wide territorial extent, so protection extends to the judiciary throughout the United Kingdom.

David Trimble: I welcome new clause 1(1), particularly its reference to the First Minister, the Deputy First Minister and Northern Ireland Ministers. It is particularly desirable to put clearly on the record the duty of Northern Ireland Ministers generally to uphold the continuing independence of the judiciary. I merely reflect that this underlines, too, how crazy it would be to have certain persons who were so closely linked with the greatest bank robbery in British history as Ministers.

Nigel Dodds: Some of the points that arise on the clause arose in the debate on clause 4. No one can argue with the general principle of the guarantee of continued judicial independence in Northern Ireland, but I am slightly concerned and puzzled as to why it should be thought necessary to have a reference in new section 1(4)(c) to "international court" when the provision refers to Northern Ireland Ministers and the judiciary. That point was raised by my hon. Friend the Member for Basingstoke (Mr. Hunter) during the previous debate.
	More generally, I come to some of the issues that arose during the previous debate about European law and its impact on domestic law. In Northern Ireland, some of the implications of that have been to our detriment. Section 24 of the Northern Ireland Act 1998 states:
	"A Minister or Northern Ireland department has no power to . . . do any act"
	which
	"is incompatible with any of the . . . rights"
	in the European convention on human rights or within Community law.
	At the moment, there is a considerable threat to planning law in Northern Ireland from a number of European directives and that has raised a number of concerns. We would strongly resist anything that increased that threat or undermined domestic law and jurisdiction of the courts.
	More generally on judicial independence, in the light of our experience since the Anglo-Irish agreement of 1985, the notion of a duty on the First Minister and Deputy First Minister to uphold the continued independence of the judiciary in Northern Ireland is worth mentioning. Since that agreement, it seems to many people that it has been commonplace for the Government of the Irish Republic to have a say in the process of judicial nominations in Northern Ireland. Indeed, it is widely accepted that on at least one occasion, the Republic's view that someone should not be nominated prevailed. Viewed in that light, the concept of an independent judiciary seems somewhat abstract. If and when the Northern Ireland Assembly returns, it is unlikely that the process would be any less contentious or political because although removing the power from the Lord Chancellor more generally might make the process more transparent, only time will tell what the longer-term implications are.

Christopher Leslie: During my earlier comments, I explained the broader principles of why we advocate clause 5 as part of the Bill, and nothing that I said was undermined by the comments of the hon. Member for Belfast, North (Mr. Dodds). Far be it from me to become too deeply involved in some of the points that he raised. They are on the record and my ministerial colleagues will see them. I stand by my assertion that clause 5 should stand part of the Bill.
	Question put and agreed to.
	Clause 5 ordered to stand part of the Bill.

New Clause 1A
	 — 
	Lord Chief Justice of Northern Ireland

'(1)   For subsection (1) of section 12 of the Justice (Northern Ireland) Act 2002 (role of the Lord Chief Justice) substitute—
	"(1A)   The Lord Chief Justice holds the office of President of the Courts of Northern Ireland and is Head of the Judiciary of Northern Ireland.
	(1B)   As President of the Courts of Northern Ireland he is responsible—
	(a)   for representing the views of the judiciary of Northern Ireland to Parliament, the Lord Chancellor and Ministers of the Crown generally;
	(b)   for representing the views of the judiciary of Northern Ireland to the Northern Ireland Assembly, the First Minister and deputy First Minister and Northern Ireland Ministers;
	(c)   for the maintenance of appropriate arrangements for the welfare, training and guidance of the judiciary of Northern Ireland within the resources made available by the Lord Chancellor;
	(d)   for the maintenance of appropriate arrangements for the deployment of the judiciary of Northern Ireland and the allocatio t of the Courts of Northern Ireland is president of the courts listed in subsection (1D) and is entitled n of work within courts.
	(1C)   The President to sit in any of those courts.
	(1D)   The courts are—
	the Court of Appeal
	the High Court
	the Crown Court
	the county courts
	the magistrates' courts.".'.—[Mr. Leslie.]
	Brought up, and read the First time.

Christopher Leslie: I beg to move, That the clause be read a Second time. New clause 1A makes provision for a new statutory office and title of President of the Courts of Northern Ireland, which will be assumed by the Lord Chief Justice of Northern Ireland. The new clause sets out the responsibilities of the President of the Courts of Northern Ireland and the courts to which the presidency applies. His responsibilities, which are similar to those already provided for in respect of the Lord Chief Justice of England and Wales, include representing the views of the Northern Ireland judiciary to Parliament, the Lord Chancellor and Ministers of the Crown generally and, when the Northern Ireland Assembly is restored, to the Assembly, the First Minister, the Deputy First Minister and Northern Ireland Ministers.
	The new clause also provides that the Lord Chief Justice of Northern Ireland will be head of the judiciary in Northern Ireland—a post that is, by convention, held by the Lord Chancellor. The Lord Chancellor will of course continue to have ministerial functions in respect of courts administration on a broadly similar basis to that for England and Wales.
	The new clause is straightforward and mirrors many of the existing provisions for the consequential changes to the post of head of the judiciary in England and Wales by virtue of the reforms of the office of the Lord Chancellor.

David Trimble: I welcome the new clause, which, as the Minister said, mirrors provisions elsewhere in the Bill. It leaves just one question in my mind: why was not the clause in the Bill to begin with?

Andrew Hunter: I have two brief questions for the Minister. First, on paragraph (b), will he explain the mechanisms whereby the President of the Courts of Northern Ireland can represent the views of the judiciary to the Assembly? I am advised that there are no established mechanisms for that, and it would be helpful if the Minister would explain the practicalities of that dimension.
	Secondly, on paragraph (c), some confusion and bewilderment has been expressed about the inclusion of the concept of the welfare of the judiciary of Northern Ireland. What do the Government have in mind as regards the inclusion of the word "welfare"?

Christopher Leslie: In reply to the points made by the hon. Member for Basingstoke (Mr. Hunter), other clauses relate to representations to Parliament and, similarly, to the Northern Ireland Assembly. They would be written representations, the nature and extent of which would be as prescribed in those other clauses.
	On respecting and advocating the welfare of the judiciary, those are general phrases found elsewhere in legislation covering the role of the head of the judiciary in ensuring that proper facilities and arrangements are made for its work in the normal course of its duties.
	The right hon. Member for Upper Bann (Mr. Trimble) asked why the provision was not included earlier. I do not have the whole history of the genesis of the Bill in front of me, but suffice it to say that I am glad that the provision is here now and that we can make it complete and perfectly formed in the way that we propose.
	Question put and agreed to.
	Clause read a Second time, and added to the Bill.

Clause 2
	 — 
	Requirement of membership of the House of Lords

Question proposed, That the clause stand part of the Bill.

Christopher Leslie: I believe that the clause should not stand part of the Bill and I therefore urge my hon. Friends to vote against it. It was included in the other place and we wish it to be removed. I shall explain why the Government take that view.
	We oppose the concept, although we understand why their lordships would prefer to keep the reformed office of Lord Chancellor in their Chamber. However, they are wrong and I hope that we can delete the clause. They have fundamentally misunderstood the changed nature of the ministerial post. The title of Lord Chancellor may remain, but gone are the duties to select the judiciary on his own and the power to sit as a judge.
	If the Lord Chancellor is no longer solely responsible for selecting the judiciary, can no longer sit as a judge and is no longer head of the judiciary, there remains no reason to be inherently distant from public accountability or parliamentary scrutiny. Of course, we propose nothing that would prevent the Lord Chancellor from being a Member of the House of Lords, but there is no good reason for the clause explicitly to prevent someone's appointment simply because they happen to be an elected representative.
	It would be odd if a Prime Minister could appoint anyone except someone who happened to be elected. Deliberately to exclude an individual who was chosen to sit in Parliament by democratic means would appear perverse to most people.

Oliver Heald: rose—

Christopher Leslie: Including, I hope, the hon. Gentleman.

Oliver Heald: Certainly not. Is not it obvious that the other place has a far less partisan manner of debate and that it is far better for the sort of figure who upholds the independence of the judiciary to come from such an environment, be approaching the end of a career but have the necessary great seniority rather than being some young politician who is starting in the Cabinet, has ambition and wants perhaps to make a name for himself?

Christopher Leslie: The hon. Gentleman is clearly talking about himself again. I wish he would not indulge in relating his personal ambitions, but I am sure he will go a long way in politics. There is nothing to stop a Member of the House of Lords being a young person, perhaps with less experience and knowledge of the world than the hon. Gentleman expects. We are therefore focusing on clause 2, which suggests that membership of the House of Lords is inexorably connected with the nature of the reformed ministerial post. It is different from the former office of Lord Chancellor because of the other changes that the Bill makes. It would be perverse to suggest that anyone could be appointed to the post of Lord Chancellor by virtue of a peerage and being put in the House of Lords but not if they were elected, even if an elected person was, by common consent, the best person for the job. It is nonsense.
	The person who fulfils the reformed office of Lord Chancellor will be a Minister of Cabinet rank, responsible for more than £3 billion of taxpayers' money. Why prevent for ever the possibility of taxpayers holding to account, through this Chamber, that individual who is responsible for spending their money? Junior Ministers, who answer to the Lord Chancellor, can try their best to account to the elected House, but should not at least the option exist of having the responsible Cabinet Minister account to elected representatives? It would be strange for the House to accept the proposition of the hon. Member for North-East Hertfordshire (Mr. Heald) that any future Lord Chancellor must always be protected from the full force of politics while accepting that his junior Ministers should not be so protected.
	In agreeing the concordat that is associated with the Lord Chancellor's reformed functions, the Lord Chief Justice said in evidence to the Select Committee:
	"My firm support for the Concordat reflects the fact that I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the Concordat. I do not consider that such a Minister requires any enhanced status or particular title to enable him or her to exercise those functions."
	That helps to underline why membership of the House of Lords is an unnecessary qualification for being appointed as Lord Chancellor.
	Like many other Ministers in the House of Commons, for example Ministers with perhaps quasi-judicial decision-making responsibilities under the Town and Country Planning Acts, the Lord Chancellor will have to act with neutrality and impartiality in some functions. That should not prevent a Lord Chancellor from being chosen by a Prime Minister from either House of Parliament.
	Times change and change is now necessary. Until the 14th century, the Lord Chancellor was always a cleric. Does that mean that we have broken a cardinal rule by departing from that practice? Are we worse off because the Lord Chancellor's duties have evolved since the days when he was primarily a secretary to the King? I do not believe so.
	The post of Lord Chancellor has evolved and continues to evolve. It is now time to end the unnecessary qualification that that Minister must be unelected. We should accept the possibility that, one day, the right person for the post might be a Member of the House of Commons. The Lord Chancellor should simply be the best person for the job, sometimes drawn from outside the ranks of elected representatives and sometimes not.
	I urge hon. Members to remove clause 2 from the Bill.

Jonathan Djanogly: Lord Lloyd of Berwick successfully moved an amendment on Report in the other place to require the Lord Chancellor to be a Member of the House of Lords. He made various comments that are worth repeating. He said:
	"The issue was, I would submit, very clear; whether the job that I have described, and which was agreed, should be performed by the Lord Chancellor in this House, or whether it could be performed by a Minister in the House of Commons. That was what the debate was actually about.
	Yet, the Lord Chancellor now says that all that was in issue was a name, a shell without the kernel, so that the Lord Chancellor would become just another name like the Lord President of the Council and the Lord Privy Seal. I cannot accept that as a fair reading of the debate that took place in Committee."
	He continued:
	"I therefore come to the fourth and last argument that has been advanced. It is said that the Prime Minister should be free to appoint whoever he wants to run the courts—free to appoint a Member of the other place who is not a lawyer and could be quite junior in Cabinet ranking. That is the real difference between the two sides in this debate. In my view, the task of defending judicial independence in the Cabinet is of such critical importance that it should be given to a senior judge or lawyer who is a Member of this House and not to a politician on his way up the greasy pole."—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 750–51.]

Peter Bottomley: Is not that point illustrated by the fact that, during the few hours when there was no Lord Chancellor in the botched Cabinet reshuffle, the Government decided to make major changes to the judiciary? That emphasises why we should always have someone around who will say to the Prime Minister and his modernisers, "Don't go so fast with our independent judiciary."

Jonathan Djanogly: My hon. Friend makes a good point. That strange moment in history was especially bizarre because the Lord Chancellor appeared to say that there was a need to modernise at a time when the constitution was working well rather than waiting until it had become weak. When something does not work and is weak, such as—dare I say it?—the dome, not much appears to be done about it.

Vera Baird: Will the hon. Gentleman explain how putting the Lord Chancellor in the Lords provides greater protection if the person who is appointed is a young and ambitious peer who hopes to get on in politics?

Jonathan Djanogly: I shall come to that in a moment. A package of issues is involved here, the conclusion of which is the part of the Bill that we are now defending, and we have to look at those issues in context.
	Lord Lloyd of Berwick surmised that the evidence given in Select Committee was almost overwhelmingly in favour of his amendment, citing
	"the views expressed by the Law Society; those expressed very firmly by the House of Commons Constitutional Affairs Committee; the views expressed by the noble and learned Lord, Lord Bingham, on many occasions . . . when he was Lord Chief Justice; and in the Law Lords' evidence to the Select Committee, and so on."—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 753.]
	That position is widely held.

Alan Beith: The Committee strongly asserted its view that the occupant of the post should be a senior person who is not looking for further political office. However, not everyone in the House of Lords fits that description, and not everyone in the House of Commons would be disqualified on those grounds.

Jonathan Djanogly: I thank the right hon. Gentleman for making that point. I shall come to his Committee's recommendation in a moment, and he might wish to comment further then.

Vera Baird: I am sorry that the hon. Gentleman has said what he just did, because the House of Lords Select Committee did not recommend that the Lord Chancellor should be a peer. Opinion was divided on that issue. Neither did the Committee on which the right hon. Member for Berwick-upon-Tweed (Mr. Beith) serves say whether the Lord Chancellor should be a peer or not. In fact, it expressly stated that it found no compelling argument that he should be. The hon. Member for Huntingdon (Mr. Djanogly) should be careful to ensure that he is right when he says that he is giving the overwhelming view of all sides.

Jonathan Djanogly: I shall not dispute what the hon. and learned Lady has said. I was quoting from Hansard, and it is on the record. She has made her point and I thank her for that.
	The requirement for the Lord Chancellor to be a senior lawyer is part of a package that is represented in clauses 2, 3 and 4. In respect of clause 4, we are saying that, for judicial independence to work, the Lord Chancellor needs to be a Member of the House of Lords and to be a senior lawyer. In effect, we are saying that the Lord Chancellor should not just be a full-time politician like any other running a Department; he should be slightly removed from the intensity of political pressure, in order to fulfil the Lord Chancellor's important historic role of acting as guardian of the rule of law and representative of the judiciary.
	That would best be achieved by his being a Member of the House of Lords, because the atmosphere in the other place is less political. Furthermore, a peer would be likely to be a senior individual who had reached the latter stages of his or her career, and would therefore be less likely to be swayed towards unquestioning support for the Government on the basis of a promise of political advancement. Lord Howe of Aberavon said:
	"Secretaries of State do not always realise it, but their functions can be shuffled around at will. Secretaries of State are relatively small beer compared with the importance of the Lord Chancellor's position."—[Official Report, House of Lords, 7 December 2004; Vol.667, c. 764.]
	That is indeed a sobering thought for the average Secretary of State.
	The House of Commons Select Committee on Constitutional Affairs published its report on 25 January 2005. It states:
	"Assuming that the House retains the Bill to an extent in the format in which it arrived from the House of Lords, on balance we prefer to keep the office of the Lord Chancellor and its distinctive status, different from that of all other members of the Cabinet, because as we said in our earlier report when contrasting the role of the Lord Chancellor with other ministers, the Lord Chancellor 'has a special constitutional importance enjoyed by no other member of the Cabinet and . . . is usually at the end of his career (and thus without the temptations associated with possible advancement)'."
	The report goes on to say:
	"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses."
	I take the point that the Committee makes there. However, that is surely overcome to some extent by the flexibility of the other place to appoint people in a faster and more direct way than exists in this House.
	The Lord Chancellor should be a politician at the end of his career, not a junior politician on the make. The Lord Chancellor is the guarantor of judicial independence, and the Government's proposals to open the position to a Member of the House of Commons who might be relatively junior and need not have a legal background would weaken the Lord Chancellor's ability to defend judicial independence against more powerful colleagues. The Bill as it stands will help to ensure that the Lord Chancellor's position as the guarantor of judicial independence is maintained. It would strengthen the office, and the Government should leave this clause alone.

Paul Tyler: My colleagues and I would like to support the Government in rejecting this requirement and to insist that it is much more important to retain flexibility. Frankly, the arguments adduced by the hon. Member for Huntingdon (Mr. Djanogly) were very dubious indeed.

Oliver Heald: Will the hon. Gentleman give way?

Paul Tyler: Not at this stage; I have hardly started. Let me advance my argument first, then we can see what the hon. Gentleman has to say.
	The hon. Member for Huntingdon did not refer to the fact that the concordat, which is extremely important, now accepts that this flexibility would be useful. Furthermore, I reject the selective way in which he quoted from the Select Committee chaired by my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith). It was absolutely outrageous. He left out the vital sentence at the end of the recommendation. He led up to it perfectly properly, by saying:
	"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses."
	He did not, however, go on:
	"There does not, therefore, seem to be a compelling argument for insisting that the Lord Chancellor must be a member of the Upper House."

Oliver Heald: The hon. Gentleman has quoted the concordat. Is he aware that Lord Woolf said of the Judges Council that
	"the council considered it preferable, but not vital, that the Lord Chancellor should be a Member of this House."—[Official Report, House of Lords, 7 December 2004; Vol. 667. c. 758.]?
	So both the Constitutional Affairs Committee and the Lord Chief Justice believe that that is preferable.

Paul Tyler: That is not what was said. It was not thought to be essential; even the hon. Member for Huntingdon knows that.

Jonathan Djanogly: Will the hon. Gentleman give way?

Paul Tyler: Let me just advance this argument a bit further. Let us see whether the hon. Gentleman can quibble with this. First and foremost—

Jonathan Djanogly: Will the hon. Gentleman give way?

Paul Tyler: Oh, come on then.

Jonathan Djanogly: I thank the hon. Gentleman for giving way. He attacked what I said earlier, and it is only fair that I should be allowed to answer him. The point is that I questioned the very conclusion that he has reached. No, I did not quote the whole report, but I addressed the issue to which he has referred, and I questioned it. He might wish to answer the questions that I posed.

Paul Tyler: I would like to do so, but first and foremost, the hon. Gentleman should recognise that the Select Committee took evidence and thought very carefully indeed about this issue. Hon. Members on both sides of the House are members of that Committee. Its report stated very clearly that its recommendation was that it was not essential for the Lord Chancellor to be a Member of the House of Lords. That was a balanced judgment from an all-party Select Committee reporting back to the House in very good time so that we could take account of hon. Member's views in our debate this evening. The Select Committee also said:
	"The size and budget of the DCA (now over £3 billion) has grown considerably in recent years and it might be thought desirable that its Minister be answerable to the House which controls supply."
	Perhaps the hon. Gentleman is about to say that the House of Lords should in future have a role in determining the Supply issue, which has always been an important function of this House. We have always said that the other place should not be able to intervene on issues of that kind, so unless he wants to change the constitution in that way, I am afraid that his argument simply collapses.
	That is not the only anomaly in the Conservatives' argument. It is also extraordinary that they think it preferable that this very important post should be held by someone who is basically an appointee of the Prime Minister of the day, rather than that he or she should have a mandate from the electorate. This House provides every single one of us with a responsibility not only to Parliament and to our party, but to our constituents and to the electorate at large. It is curious, as my hon. Friend the Member for Somerton and Frome (Mr. Heath) said on Second Reading, that anyone should
	"want to institutionalise that arrangement, so that every future Lord Chancellor—every future Secretary of State for Constitutional Affairs—had to be a crony of the Prime Minister of the day, because only by that patronage does anyone appear in the other place".—[Official Report, 17 January 2005, Vol. 429, c. 597.]
	The Conservative party, my party and, I hope, the Labour party are absolutely determined to make the other place an elected House in due course. I think that the hon. Gentleman's party is still signed up to making a majority of those in the other place elected—I believe that 80 per cent. was the last proposal. My party is also committed to the election of a majority of those in the other place. I am not sure about the hon. Gentleman's views, but a substantial number of his colleagues in both Houses—including their leader in the Lords, and the Lord Chancellor himself—are committed to making the other place more democratic and more representative. That, after all, was what all Labour Members of Parliament were committed to at two general elections, and what they had a mandate to implement. It has not happened yet, and I suppose we should not hold our breath.
	The hon. Gentleman referred to an anomaly. He assumes a continuation in the other place of appointees of the Prime Minister of the day. If he is now resiling from the policy of his own party, let him say so.

Jonathan Djanogly: rose—

Oliver Heald: rose—

Paul Tyler: I will respond to an intervention from whichever hon. Member wishes to speak.

Jonathan Djanogly: The hon. Gentleman is kicking the ball way out of the baseball park—[Laughter]—or even the football ground. How can he pre-empt the form of a future elected upper Chamber? If there happened to be a list system, which his party would presumably propose, a certain number of advocates could be stuck on the list—whoever his party wished.

Paul Tyler: You would probably call me to order, Mrs Heal, if I spoke at length about the proportional representation system that I—along with members of the hon. Gentleman's party and members of the governing party—hope to include in a draft Bill in a couple of weeks; but it will not be a list system.
	This Bill, we hope, will ensure that the Lord Chancellor of the future is the best person for the job. We would wish to ensure not just that that person was accountable to the Prime Minister and Cabinet of the day, in terms of collective responsibility, but that he or she was accountable to the nation at large through Parliament. We accept the argument that the best way to achieve that is to prevent any discrimination against any individual holding the post.
	I find extraordinary the way in which members of the Conservative party so patronisingly describe all those in the other place as being at the end of their careers—on the verge of their dotage, according to the hon. Member for Huntingdon. We believe that the occupant of this important post, responsible for a considerable budget for a very important Department, should be answerable, in the best possible way, to whichever House of Parliament of which he or she is a Member, and through Parliament to the people of this country. It would be absurd to prevent that improvement from being made by the Bill simply because of an assumption that the current Prime Minister will always block real reform of the other place.
	We will support the Government in a Division to remove prescription and discrimination that we consider unnecessary and undesirable. We accept the view of the Select Committee, which has thought about the matter very carefully, that on balance it would be best to dispose of this proposal now.

Vera Baird: It strikes me as absurd that it should be suggested that in a democratic society in the 21st century we should legislate to ensure that a Minister of the Crown with a budget of £3 billion is never to be answerable to the House of Commons. That is an utter democratic absurdity, completely inconsistent with the democratic state that we have reached.

Oliver Heald: The hon. and learned Lady appears before judges all the time. The Judges Council says that that would be preferable, because it is looking for someone who is not particularly partisan and party political to do the important job of upholding judges' independence. What is wrong with that?

Vera Baird: Let me make two corrections. First, I do not appear before judges all the time. Unlike several of the hon. Gentleman's colleagues, I am a full-time professional Member of Parliament who does not see this as a part-time job to come to in the evenings. Secondly, Lord Woolf may have mentioned that the Judges Council had thought it preferable, but what he eventually said was this:
	"I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or any particular title to enable him to exercise those functions."
	I am sure I have made my point firmly enough, but let me repeat it. What other democratic institution anywhere in this century will legislate to remove from democratic control a Minister of the Crown with a budget of £3 billion? The short answer is none. I want to be able to ask, on behalf of my constituents, questions about the organisation of the courts, questions about the use of the legal aid fund, questions about the quantum of the legal aid fund—and that is exactly the right way for politics to be carried out. I should have the Minister in question answerable to me in the House of Commons. The Opposition would legislate to make that utterly impossible, and to emasculate—I wish there were a feminine term—a Member of Parliament, preventing that Member from performing a very important function. That is a democratic absurdity.
	What do the Opposition say? They say that even if a Member of the House of Commons is 60 or 70 years old, intent on retiring at the next election with no wish for further advancement, having already shown himself to be a great statesperson who everyone agrees could do the job, he shall be stopped from doing it unless he gives up his constituency, which he may be very happy to serve and which may be very happy for him to serve it. That applies to Members on both sides of the House. The best person for the job, who all in this House may agree is the best person for the job, will be excluded.

Jonathan Djanogly: Does that extend to the Attorney-General's being in the House of Lords? While we are at it, does the hon. and learned Lady agree that the Attorney-General should be the Lord Chief Justice?

Vera Baird: Simultaneously or consecutively?

Jonathan Djanogly: Consecutively.

Vera Baird: Frankly, it is not a matter to which I have given any thought, but the hon. Gentleman is welcome to intervene and tell me whether he thinks it is a good idea.

Jonathan Djanogly: I think it is a very poor idea, but can we return to the first point? Does the hon. and learned Lady think that the Attorney-General should be in the Lords?

Vera Baird: I think it is a moot point. I am very puzzled by the other suggestion, that he should become the Lord Chief Justice; I am not sure where that has come from. I have obviously missed a bit of gossip somewhere along the way. The hon. Gentleman can update me on where he read that.
	Shall we stick to the point? Why is it necessary to oust the Lord Chancellor, whoever he may be, from the House of Commons? First, he is no longer to be a judge at all. The Tories were very happy when the Lord Chancellor was a political appointee who appointed the judiciary. That seems to be to be a much more dangerous position than anything currently proposed in the Bill. Indeed, the Bill remedies that. Now, however, the Lord Chancellor will not do that either. He will not appoint the judiciary; as is now, I think, commonly approved, the judiciary will be appointed by a judicial appointments commission, quite separate from the Lord Chancellor. The recommendations will certainly be given to him, but the transparency of the process, and the limitations of his role in that process, make it very clear that he has less potential to intervene in judicial independence and less potential to appoint cronies—not that anyone has ever really suggested that that is what a Lord Chancellor has done. He is not a judge, so why do we need him to be a peer? He does not appoint the judges. Why do we need him not to be in the House of Commons? He is not in charge of discipline for the judges any more. He is not in charge of removal any more, on his own. It is all hedged around with qualifications and limitations. Very little of his role is to be applied to judges. So why is it now necessary to remove him to the House of Lords, when his role in the judiciary is much smaller? It is not necessary to do that to protect the judiciary. If that is why the Opposition say that that should be done, it is incomprehensible in context.
	On the concordat with the Lord Chief Justice, he pronounces himself satisfied that there is no threat to judicial independence from anywhere. I have just quoted him. He says that he is perfectly happy that the person should be in either House. He feels that being a peer would make no measurable difference and would not improve the situation. He speaks on behalf of the judiciary. If the judiciary is not concerned that that figure, who will still have an important though much reduced role, should be in the Commons, surely no one has a leg to stand on. Those are the very people whom the Opposition are pretending are likely to be threatened by the presence of the Lord Chancellor in the political hurly-burly.
	The Lord Chief Justice himself, who must have been negotiating now for over a year on the issue and gone through it in extraordinary detail, has pronounced himself utterly satisfied that this measure is completely unnecessary. One just gropes around for the reason for the proposal. I cannot find one. It is easily demonstrated that there is much less control over the judiciary now with this official, and therefore less reason to be concerned about his presence in what I call the political hurly-burly without believing that it is worse in here than it is in the other place.
	The hon. Member for Huntingdon (Mr. Djanogly) did not do fairly by the two Select Committees that have laboured mightily, reported properly and taken evidence on the issue. He did not say as clearly as he should have done that the House of Lords Select Committee, to which this Bill was, unusually, sent for very careful and long-term consideration, did not say that the Lord Chancellor should be a peer. It was divided on the issue. As has been made clear from the horse's mouth and from the horse's colleague, the Committee of the right hon. Member for Berwick-upon-Tweed (Mr. Beith) did not say anything of the sort either. The hon. Member for North-East Hertfordshire (Mr. Heald) is talking to me all the time about it being preferable. That is a very different thing from it being compulsory.

Oliver Heald: Of course, it is a different thing. I have never said anything else, but the point is that we want the best and what is preferable is obviously a lot better than what is not.

Vera Baird: We want the best Lord Chancellor and the best Lord Chancellor may be in this House. The hon. Gentleman will exclude the best person, if he or she is here, from being appointed to that office.

Christopher Leslie: The hon. Member for North-East Hertfordshire (Mr. Heald) has now begun to speak in riddles to justify his point. He talks about it being preferable but the clause that he is advocating reads:
	"No person is qualified to be Lord Chancellor unless he is a member of the House of Lords."
	It talks not about preference but about "must be". Will my hon. and learned Friend comment?

Vera Baird: I agree completely.

Oliver Heald: Is not the key point that, if the measure were passed, the preferable position would have been achieved?

Vera Baird: The preferable position is achievable now without the that measure. Surely that is not beyond the hon. Gentleman. Let me move on because I am satisfied that it is not beyond him. He is starting to have to talk in riddles because he has lost the rational basis for what he is putting forward. The testimony from all the interested parties, Committees of both Houses and the judiciary is that he is wrong and he is completely out of it, so he is starting to talk in riddles.
	The purpose of the measure has nothing to do with judicial independence. Its purpose may be to avoid any suggestion of improper influence in the courts system because of too close control over the Lord Chancellor's appointment by the Prime Minister, perhaps—by any Prime Minister—or too much interference by other politicians. Of course, avoiding allegations of cronyism is very important but it must be said that the current Lord Chancellor is both a peer and a lawyer and that has not avoided such allegations against him. Indeed, on Second Reading, the hon. and learned Member for Harborough (Mr. Garnier) suggested that there was something wrong with the appointment of Lord Justice Potter as the president of the family division because he had been the pupil master of the Lord Chancellor.

Edward Garnier: Since the hon. and learned Lady and I had a spat on the last occasion, I checked precisely what I did say. If she looks at the record, I said that there was something illogical about the Government advancing the arguments that they were advancing for a judicial appointments commission when their current Lord Chancellor was prepared to appoint judges in the way that he did. I had no criticism of the individual appointment. Lord Justice Potter will make a very good president of the family division. However, I do not want to get sidetracked. I have some better arguments to put to her in a minute.

Vera Baird: I doubt whether the hon. and learned Gentleman is going to muster very good arguments but I wait with bated breath for all of them. What he said was:
	"The Minister says that the Government want to modernise the operation of the judicial appointments system and make it transparent. Why then did the Lord Chancellor for the transitional period, as he likes to call himself, appoint his pupil master as president of the family division?"—[Official Report, Monday 17 January 2005; Vol. 429, c. 557.]
	If the complaint were about a lack of transparency in the current methodology, which is what I think the hon. and learned Gentleman is now suggesting, he could have mentioned the appointment of any judge over the last period after the institution of the Bill, but he did not choose to mention the appointment of Lady Hale, Mr. Justice Bean or Mrs. Justice Dobbs. He chose to mention the appointment of Lord Justice Potter, the pupil master as the president of the family division. It seems that that was a slur. There would have been no point in mentioning that particular individual if it had not been intended to slur the Lord Chancellor. I regret to say that the consequence was that it became dangerously close to slurring Sir Mark Potter, who is an absolutely excellent appointment.

Peter Bottomley: My hon. and learned Friend the Member for Harborough (Mr. Garnier) just said that he was making the point that the present arrangements allowed the Lord Chancellor to pick the new head of the family division. It is a pity that the Committee has had to hear the hon. and learned Lady refer copiously to her notes, which must have been written before my hon. and learned Friend made his intervention, because what she said in the last two or three paragraphs paid no attention to what he said and to what the Committee heard.

Vera Baird: First, that is utterly incorrect and secondly I am not reading from my notes. I am reading from the Hansard of what the hon. and learned Gentleman said last time. Would the hon. Gentleman like to borrow it? I am happy to hand it across.

Peter Bottomley: I repeat, my hon. and learned Friend said that he was illustrating the present method of appointment. Everything that the hon. and learned Lady said after that ignored what he said and that may not be regarded as the greatest courtesy to the Committee.

Vera Baird: The hon. Gentleman is wrong yet again. I heard what the hon. and. learned Gentleman affected to have said last time. That is what he has tried to put right tonight. I have read what he did say last time and what he said last time was a calculated slur on the current Lord Chancellor for seeking to "appoint his pupil master". Otherwise, as I have said, if the complaint is about the lack of transparency, why not complain about that lack in the other 10 judicial appointments made over the last few months? The position is utterly clear. It does not matter how many times the hon. Member for Worthing, West (Peter Bottomley) rises, he cannot erase what was said in Hansard.
	The fact that the current Lord Chancellor is a peer has not stopped him from being slandered on the basis that he is somehow inappropriate and not independent because he was once the flatmate of the Prime Minister. That, too, has been said innumerable times by Conservative Members. Neither has being a peer or, indeed, a lawyer, protected him from the allegation that he is inappropriate because he did not stop the ouster clause from being placed in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, though, of course, that never happened. Scandalous and silly attacks against the current Lord Chancellor have been made and the fact that he is a peer has not protected him from them.
	It is ironic that the very party that has tried to use the fact that the current Lord Chancellor is known to the Prime Minister and was appointed to the peerage to become Lord Chancellor by the person who was his flatmate when they were both lawyers as evidence that the system is somehow under threat from the Prime Minister's cronyism is the same party that is now saying that the way to protect the legal system from an inappropriate threat is to ensure that the next Lord Chancellor has exactly the same professional qualifications as a senior lawyer and exactly the same status as a peer as the current Lord Chancellor. Conservative Members repeatedly say the opposite of what they previously said from one week to the other, tying themselves in silly knots. The current Lord Chancellor is, incidentally, an absolutely excellent holder of that office—and he would be if he were in the House of Commons.
	What protection are we to derive from the fact that the next Lord Chancellor must, if the Tories have their way, be a peer? Well, we would be so well protected that Lord Archer or anyone else in the peerage who had been convicted of a criminal offence could become Lord Chancellor. Such people are not debarred from holding their peerage. I guess, also, that the son of a son of a son of a son of a son of a notable peer, in whom the strain of high merit has grown a little thin over the years, could equally be appointed Lord Chancellor. By the skin of our teeth, we have just escaped the possibility that the Lord Chancellor could be someone convicted in South Africa of being involved in an attempted coup against the Government of Equatorial Guinea—the son of a former Prime Minister. Happily, he has only a hereditary baronetcy, but it is pretty close. [Interruption.] Some Conservative Members are acknowledged experts in the ranking of the hereditary peerage and have a degree of understanding way beyond my own in that respect.
	That shows how much protection there is in ensuring that someone is a peer. It does not make the slightest bit of sense. It is clear that making the Lord Chancellor a peer provides no protection. It is the calibre of the person that matters, and the calibre can be high, irrespective of whether he or she is chosen from the House of Commons or the other place. The overwhelming case for him to be in the Commons centres on the answerability argument.
	Let me now deal with the second proposal—that the Lord Chancellor should be a senior lawyer. It is not just a senior lawyer, though, but one with particular qualifications—

George Stevenson: Order. The hon. and learned Member will know that the issue of the Lord Chancellor being a lawyer is dealt with in clause 3, which we shall come to in a moment. We are currently debating the particular issue of membership of the House of Lords.

Vera Baird: I am grateful for that guidance. The hon. Member for Huntingdon in opening for the Opposition, referred to the two issues as a package, so it seemed right for me to deal with them in the same way, but I shall return to that matter later.

Edward Garnier: I shall not follow the hon. and learned Lady down the somewhat acerbic and personalised route that she took, because doing so advances neither her own arguments nor the general tenor of the debate. She is, of course, perfectly entitled to make her remarks and deliver them in whatever tone she wishes. I would not want to prevent her from doing so.
	I would like to concentrate on some of the differences in the two sides of the argument, not because I believe that one side is necessarily right and the other necessarily wrong, but because I merely want to express my opinion. I am not saying that, if either or both of clauses 2 and 3 were removed from the Bill, civilisation as we have known it for the last 3,000 years would cease to exist. It is silly to put such arguments into our minds, but it is important to appoint the best person for the job of Lord Chancellor.
	Given how the Bill has been amended and how the functions of the office of Lord Chancellor are to be radically changed, it would be more honest, in the end, to describe the Secretary of State for Constitutional Affairs—the head politician of the £3 billion a year public Department—as the Lord Chancellor. The person who will hold the title of Lord Chancellor after the Bill is enacted will not be a Lord Chancellor as we have all understood it for the past 30, 40, 50 or perhaps 100 years. He will still less be the same sort of Lord Chancellor who existed in the days of Henry II or even Henry VIII. We are dealing with the title "Lord Chancellor" differently from how Lord Irvine, Lord Gardiner, Lord Hailsham, Lord Kilmuir and any other relatively recent, but not extant, Lord Chancellor would have understood it.
	I described the Bill and clause 1 as intellectually dishonest, and there is something intellectually dishonest about pretending that the Lord Chancellor will be anything but a politician who heads a spending Department. The title will be continued for political convenience and to prevent people from having hissy fits about its removal, but the job will not.
	We must be clear about the situation. I am perfectly prepared to have a Lord Chancellor with functions and a remit that are much more restricted than those of the current holder of the office. In the 1950s, the Lord Chancellor's Department had a tiny number of civil servants and little spending power. Beyond his ceremonial role, the Lord Chancellor did little more than chair the House of Lords and deal with the appointment of the judiciary. The judiciary was taken only from the Bar of England and Wales in the 1950s. There were only between 2,000 and 3,000 barristers in those days—perhaps not even as many as that—so it was perfectly possible for the Lord Chancellor personally to know the candidates from the Bar of England and Wales who would be of suitable quality for high judicial office.
	I understand that that is no longer possible. The Bar of England and Wales now numbers between 10,000 and 12,000 people and there are about 70,000 to 80,000 practising solicitors in England and Wales. Those people form the pool from which the judiciary may be selected, so the Lord Chancellor cannot possibly be expected to know all 80,000 to 95,000 lawyers who could be eligible for judicial office. The Lord Chancellor's job and functions are thus completely different from those in the 1950s and the early 1960s, but for all sorts of reasons—good and bad—we want the title to continue. As I said a moment ago, however, we are misleading ourselves if we think that the Lord Chancellor, as head of the Department for Constitutional Affairs, is doing anything like the job of the old Lord Chancellor.
	We also fool ourselves and perhaps get into a bit of a muddle if we try to rely on the words of Lord Woolf as being for or against the argument. During the previous Parliament, the then Home Secretary—he is now the Foreign Secretary—thought it appropriate to rely on extracts of correspondence that he had had with the then Lord Chief Justice, Lord Bingham. He made the mistake, as others have done in court and perhaps in the Chamber, of reading only an extract. He cited the extract in support of the Government's policy to curtail jury trials, but if he had read the whole letter, he would have discovered that the then Lord Chief Justice's views on the matter were not as he hoped that the House would understand. Similarly, those who agree with the Government's view on clause 2 should not look for too much support for their position in what Lord Woolf has said, or is reported to have said. There are two reasons for that. First, I suspect that his views, as expressed publicly, are designed to lead to some sort of compromise and are not necessarily the views that he might express in private. I have not discussed the matter with him, so I have no way of proving that one way or the other. I merely caution Members against relying too much on extracts from letters or documents penned by the Lord Chief Justice in support of arguments that they want to make.

Alan Beith: On the principle that the hon. and learned Gentleman is advancing, it is quite proper that anyone considering the views of the Lord Chief Justice or anyone else should look at them in their entirety and not misquote them, but to take the view that someone might possibly have said in private something that differs markedly from what they said in public is not a particularly good way of assessing their declared opinions.

Edward Garnier: I accept that. That is why I said candidly a moment ago that I had no proof one way or the other; I merely caution Members against relying on the written words of Lords Chief Justice, especially when they are quoted out of context.
	More to the point, and more interestingly, when people complain that the judiciary, or some members of the judiciary, are members of the House of Lords and thus members of the legislature, and that that confuses those two pillars of the constitution—namely, the legislature and the judiciary—and demand the setting up of a supreme court outside Parliament whose judges are not Members of Parliament, it strikes me as odd that, despite that, they rely on the views of Law Lords, or the Lord Chief Justice in this instance, to support their case. I make that criticism of both sides of the argument.
	My hon. Friend the Member for Huntingdon (Mr. Djanogly) quoted at length from the speech of Lord Lloyd of Berwick. He is perfectly entitled to do that, but such quotation does not always assist; it is our arguments and views that are important when we discuss Bills in this place, although we should no doubt pay respect to the views of their lordships. Equally, if it be thought by the purists on the other side of the argument that there should be an obvious and clear separation of the judiciary from Parliament, surely we should not allow ourselves to be influenced in coming to our views by the views of members of the House of Lords who are judges. We should respect the purity of their arguments by not paying too much attention to their views.

Peter Bottomley: The point that I have taken from this is that the word "concordat" means agreement and that the word "compromise", at its best, means agreement. It is clear that in the concordat the present Lord Chancellor has signed up to things with which he disagreed. He was willing to change his views, so the Committee can say that we should not take a single sentence from one part of the concordat to determine which way we would prefer to go ourselves.

Edward Garnier: My hon. Friend anticipates me, because I do not think that we should legislate by concordat. We should legislate in this and the other place, and I am not sure that it is proper for a judge, no matter how eminent or senior, to reach agreements with a member of the Government, or with the Lord Chancellor, in such a way as to design the legislation that the Government intend to push through the House. I accept that the Government have a vast majority and that all the arguments we make against their legislation will soon be tested in the Lobby. It does not take great powers of anticipation to know what the verdict of the Division will be. None the less, there seems to be a huge inconsistency in the way in which we treat the opinions of members of the House of Lords who are also members of the judiciary.
	We should be robust enough to put forward our own arguments. We may disagree; the hon. and learned Member for Redcar (Vera Baird) and I have had our disagreements. She is a passionate supporter of the supreme court and of the removal of the Law Lords from the House of Lords and their placement somewhere else. She is a passionate supporter of the reform of the office of Lord Chancellor. I happen to disagree with her, but that need not be a cause of a war or a spat. They are just two separate opinions, which we are entitled to express. If she wishes to express another, I would be delighted to let her.

Vera Baird: I am concerned that the hon. and learned Gentleman seems to be suggesting that the Lord Chief Justice has signed up to something with which he does not agree. I do not know on what basis the hon. and learned Gentleman suggests that, nor do I understand on what basis his colleague, the hon. Member for Worthing, West (Peter Bottomley), expressed a similar view, trying—not for the first time—to expand or explain the point.
	Will the hon. and learned Gentleman explain why he says that Lord Woolf may have signed up to a concordat with which he does not agree? Will he explain why he says that it is our views that count and that we should not be influenced by what Lord Woolf says, despite his having a representative role on behalf of the judiciary? Will he explain that particularly in the light of another quotation of Lord Woolf—this is Hansard and not letters from Lord Woolf—in which he says that the Bill is
	"a piece of great reforming legislation . . . It will rank in importance with the great constitutional instruments of the past."—[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 759.]
	Does the hon. and learned Gentleman think that he meant it, or not?

George Stevenson: Before the hon. and learned Gentleman gets to his feet again, I should say that I have not been in the Chair long but I am beginning to worry that we are drifting into matters that may not be sufficiently to do with membership of the House of Lords. I understand that these short clauses are a temptation to us all, and the concordat is relevant, but I would welcome a little more emphasis on the subject of membership of the House of Lords.

Edward Garnier: I shall obey your constraints, Mr. Stevenson, and return to the requirement that the Lord Chancellor be a member of the House of Lords.
	There is a perfectly respectable argument for leaving the Lord Chancellor where he is. As I said at the outset, what concerns me is that the Lord Chancellor's functions and job, from the enactment of this Bill, will be entirely different. We need a Lord Chancellor in the House of Lords who, as we shall discuss under clause 3, has a legal qualification or legal experience but deals with a Department that is much restricted and much more like the office of the Lord Chancellor in the 1950s. That would prevent much of the complaint of the purists who want an accountable Cabinet Minister in this House. I am not convinced that Ministers in the other House are unaccountable. The Government ought to be accountable to both Houses of Parliament.
	I accept the point about Supply. In the scheme of things, I dare say that £3 billion in the Government's total expenditure is a small amount, but as one academic has recently said, the Department has become a leviathan, consuming taxes much more than it traditionally used to do. I come back to the traditional point that we should return the Lord Chancellor's office to its previous remit and then cut off a large part of its public expenditure aspects for some other Minister. Whether that Minister is in the Commons or in the Lords matters little to me; the ill-tempered arguments that have flowed across the Chamber this evening do not entirely hit the point. The point is that this Government have by stealth and intellectual dishonesty so altered the role of the Lord Chancellor that, effectively, his title, as attached to a Member of the House of Lords, will be meaningless. The decision on whether he is a Member of the House of Lords depends for its validity on the Lord Chancellor's being the office holder that he would have been 40 years ago and not the office holder that he would be next year or the year after.
	We will come shortly to deal with clause 3, for which other but similar arguments may apply. However, neither the Prime Minister nor our constitution is disadvantaged by the appointment of a Lord Chancellor who is a Member of the House of Lords, as long his accountability function is dealt with by a Member of the Commons. I urge Members who are in the Chamber—I fear that Members who are not here will not have the benefit either of my argument or of opposing views—to pay attention to what the Opposition have said, because our arguments are not without merit.

Alan Beith: I do not find the battle cry of "Let us return to the Lord Chancellors of the 1950s" very appealing. I am not terribly excited about the prospect of resurrecting Sir David Maxwell Fyfe, later Lord Kilmuir, and his like. Indeed, there were more political Lord Chancellors in those days than has been the case in recent years. However, that is the basis on which we should try to resolve this matter.
	Before I come on to the position of the Constitutional Affairs Committee, I should like to deal with the issue of making Ministers accountable to either the House of Commons or the House of Lords. Whether the officer holder is a Member of the Lords or the Commons, the other House will have the problem of not holding him accountable. I strongly support my party's long-held view that we should have more mechanisms for holding Ministers to account in the House of which they are not a Member. We already have some mechanisms, including the Select Committee. Indeed, I have tried to encourage the hon. and learned Member for Redcar (Vera Baird) to seek membership of that Committee so that she can pose questions to the Lord Chancellor. In general, however, a modern Parliament should have mechanisms allowing Ministers from either House to appear not just in Committee but even on the Floor of the House to answer for themselves.
	That, however, is not the core of my argument. The Select Committee rightly recognised that there was a tension between the different functions of the office. The Lord Chancellor has ministerial responsibility for a large Government Department, which has just been accused of becoming a leviathan by the hon. and learned Member for Harborough (Mr. Garnier). If that is the case, it is because of the amount of money that we have to spend on legal aid to give people access to justice. The size of the Department's budget is directly related to that problem, and we must consider how we could contain that expenditure at a manageable level while securing access to justice for people who need it. However, the Department has a very big area of responsibility, which we recently increased by transferring to it, quite rightly, responsibility for tribunals, which should not be controlled by Departments with a direct interest in the outcome of their decision.
	Understandably, Members of the Commons may wish to question the man in charge, the Lord Chancellor, about that big Department. We have tried to defuse hostility and uncertainty by arguing that the Lord Chancellor has a responsibility to defend the judiciary, the rule of law and judicial independence, and needs status to do so. That argument has generally been accepted. We expressed the widely held view that we do not want in that position a Minister who is seeking further promotion. We said that the Lord Chancellor
	"has a special constitutional importance enjoyed by no other member of the cabinet and . . . is usually at the end of his career (and thus without the temptations associated with possible advancement)".
	That principle should be applied so that we find the kind of person we want, but it is not affected by the question of which House the candidate belongs to. I can think of people who do, and do not, fit the category in both Houses. I am not entirely convinced that the present Lord Chancellor has eschewed further political appointment, despite his membership of the Lords. Nor does membership of the House of Lords necessarily imply that one is old, wise and senior.
	Notable junior Ministers in the other place have enjoyed significant advancement. Until recently, for example, Baroness Scotland was a Minister in the Department for Constitutional Affairs. A shrewd man might put money on her obtaining further high office under a Government of her own party. A number of able people with aspirations to higher office have been Members of the House of Lords, but the Committee did not believe that they were the sort of people who would reassure the judiciary and other people concerned with the law that they would stand up to Home Secretaries and tell them that they are going too far and that their approach is not consistent with the Government's commitment to the rule of law and judicial independence.
	Home Secretaries almost invariably think that their proposals are the only way to deal with the latest security problem and outweigh all civil liberties concerns. It takes someone with some strength and someone who is prepared to stand up to a Prime Minister who may want to back his Home Secretary to take on the post. Those qualities can be found in either House; they need not be sought only in the Lords. In looking at the tension between those considerations, we as a Select Committee certainly felt that there was no compelling argument to insist that the Lord Chancellor should be a member of the upper House.

Paul Tyler: I congratulate the Select Committee on footnote 21, which deals with the relevant recommendation and states:
	"Nothing in the use of the word "Lord" necessarily indicates membership of the House of Lords: eg Lord President of the Council and Lord Privy Seal have frequently been members of the House of Commons."
	Clearly, the title is not important. My right hon. Friend's Committee may well recall that, when Mr. Edward Heath was a Minister in this House and Lord Privy Seal, it was said that he was neither a lord, nor a privy—nor a seal.

Alan Beith: I think that my hon. Friend was determined that I should not forget to mention the footnotes to my Select Committee's report. Clearly, there are no formal obstacles to the holder of the office of Lord Chancellor being a Member of the House of Commons. Some hon. Members have expressed the belief that it is desirable that he should be a member of the House of Lords. I do not wholly share that belief—candidates can be found in both Houses—but it is in no way appropriate that we should write into legislation a disqualification like the old disqualification that the Lord Chancellor must not be a Roman Catholic. The case for disqualifying all who are not members of the House of Lords from holding the modified office has not been made out in any of the argument that we have heard tonight.

Peter Bottomley: I am glad to speak after the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who has chaired the Select Committee on Constitutional Affairs effectively. It is a matter of record that the only formal votes in the Select Committee's report were on whether the Lord Chancellor had to lead the House of Lords and on the cost of the Government's new proposals.
	The issue is whether it is possible for someone who sits in the House of Commons to be the Lord Chancellor. The answer is that it would be possible if clause 2 were taken out. The question is whether it is sufficiently desirable to make that possible or whether, as many hon. Members have argued, it is better, at least for some time in the future, to say that the Lord Chancellor should come from the partly unreformed House of Lords. That comes down to whether we seriously want to have a Lord Chancellor from the House of Commons. If the Lord Chancellor is someone who has been elected to the Commons for some time—let us assume that clause 3 remains as drafted—someone could be selected who is a good, experienced lawyer whose talents are spotted relatively early; but what happens to that person after they have been Lord Chancellor?
	We could fall into the trap that was illustrated by the fact that, when there was no Lord Chancellor for a few hours, when the Prime Minister and his cohort—those involved were not cronies but a mistaken cohort—believed that he could abolish the Lord Chancellor by fiat or by administrative action, the changes were proposed to the Law Lords and the idea of establishing a supreme court arose, although it had not been thought through or consulted on and was not in the right form anyway. The concordat's existence confirms that the Government had to recognise their mistakes.
	If we want to avoid that kind of thing happening in the future in relation to something rather more serious than where the Law Lords sit, there are good arguments for saying that we should not make all these changes and that we should prohibit the Prime Minister from picking a Lord Chancellor who is in the Commons. There is no difficulty in picking a Lord Chancellor from the Commons and, given some continuity in the unreformed House of Lords procedures, sending that person to the House of Lords. That was one of the reasons why the disqualification of Roman Catholics was changed so that Sir Peter Rawlinson could become Lord Chancellor. There is a lot to be said for saying that, if the person who has the most talent is currently in the Commons, what should happen to them is what happens to someone who has got the most talent and who is neither in the Commons nor the Lords: they get appointed to the Lords to become Lord Chancellor.
	In fact, for all the occasional fuss about the previous Lord Chancellor, Derry Irvine, no one would accuse him of not being prepared to stand up to the Prime Minister or fellow Cabinet Ministers. There are times when the person who is fulfilling the functions of Lord Chancellor must say to the rest of the Cabinet, "No; this is wrong. You shouldn't do it. We shouldn't do it. It's not going to happen." I fear that if the Lord Chancellor were in the Commons, they would not say that, because they could and would be overruled.
	Although some of the things that the hon. and learned Member for Redcar (Vera Baird) has said may be correct, her arguments are not sufficiently great. Although hon. Members on both sides of the House, including the Committee Chairman, have properly quoted the Select Committee's conclusions, it is reasonable for the House to say, "Not now and not in this way—leave clause 2 in the Bill."

Oliver Heald: As far as the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who chairs the Committee, is concerned, may I join in the tributes to the thorough way in which the Committee went about its business? He said that one must consider the balance of the argument and a decision must be made. When the Judges Council examined the matter, however, it concluded that although the matter is not vital, it is preferable for the Lord Chancellor to sit in the other place.
	As my hon. Friend the Member for Worthing, West (Peter Bottomley) said a moment ago, standing up for the independence of the judiciary is not always an easy job, and requires a certain stature and seniority. I agree that, as far as I am aware, the recent incumbents of the office of Lord Chancellor have stood up for that essential independence.
	The hon. and learned Member for Redcar feels that the Commons contains excellent candidates for the office—perhaps she is right—and she mentioned the Budget too. In making an overall decision, however, one should reflect on the point that the other place is a less partisan House, and that the sort of person who might be appointed there or who is already there is likely to be the sort of person whom we want—somebody who is coming towards the end of their career, who has sufficient seniority and who is a lawyer. If it is preferable, and I believe that it is, to appoint a Lord Chancellor who is a peer, a lawyer and so on, this House should take the bull by the horns and make a decision—a point reflected in clause 2.
	My hon. and learned Friend the Member for Harborough (Mr. Garnier) pointed out that once the Bill is passed, the Lord Chancellor will not be the person he was. He will be tied down, regulated and controlled by concordat, because the judges are frightened that somebody who is not committed to judicial independence will be appointed. Such a person might be a young politician on the make, who might have less seniority and less common sense than previous incumbents, and who might not be a lawyer.
	We can introduce two extra protections if clauses 2 and 3 remain in the Bill. Having heard the arguments, we should divide in favour of retaining clause 2, if the Government want to leave it out.

Christopher Leslie: We have heard some desperately poor arguments from Conservative Members, and the sound of barrels being scraped. Clause 2 is clearly unjustifiable and should be removed from the Bill, and I urge my hon. Friends to oppose it.
	We have heard a number of interesting arguments, including the idea that in reality the Lord Chief Justice does not hold the views that he expresses. The hon. and learned Member for Harborough (Mr. Garnier) went on to say that it was intellectually dishonest to keep calling the post Lord Chancellor when the Government have fundamentally changed it by stealth. It is a bit rich to accuse the Government of intellectual dishonesty when the Government wanted to abolish the title of Lord Chancellor in the first place. As far as changes by stealth are concerned, the legislation and the concordat have been debated for more than a year in Parliament, which is hardly stealthy.
	The hon. Member for Worthing, West (Peter Bottomley) came up with all sorts of interesting suggestions, including that the Prime Minister could pick a Member of Parliament to be Lord Chancellor, but would then have to turf them out of this place, send them to the House of Lords and cause a by-election, because of the absolute objectionableness of having somebody elected in that post. What a dreadful, horrible concept that would be—I say that, of course, with irony.
	There are many reasons why the Lord Chancellor does not have to be a peer—a concept that my hon. and learned Friend the Member for Redcar (Vera Baird) eloquently advocated, as did the right hon. Member for Berwick-upon-Tweed (Mr. Beith). Indeed, the main argument of the hon. Member for North-East Hertfordshire (Mr. Heald) was that it might be preferable to have a Lord Chancellor who was a peer. I submit again that that is not what the Bill says at present. It says that that individual must be a peer, not "perhaps could be" or that it "might be preferable", so that is not an argument in favour of clause 2.
	A peerage is no longer a prerequisite for a Lord Chancellor. The Lord Chancellor would no longer have to be a Law Lord—not least because, with the new supreme court, there will no longer be an Appellate Committee of the House of Lords. Ministerial functions of that reformed office are capable of being undertaken in either House of Parliament. It would be perverse to say that anyone can be Lord Chancellor except those who are elected. It would be ridiculous to prevent for ever the taxpayer from holding a Lord Chancellor to account, via this elected House, for that £3 billion of legal aid expenditure. A peerage is no guarantee that we would get the best person for the job. We should ensure that it is possible for the Prime Minister to pick either an individual who is in the other place or an elected individual if they are the best person for the job. I hope that the House will reject clause 2 as it stands.

Question put, That the clause stand part of the Bill:—
	The Committee divided: Ayes 119, Noes 272.

Question accordingly negatived
	Clause 2 disagreed to.

Clause 3
	 — 
	Legal qualifications

Question proposed, That the clause stand part of the Bill.

Christopher Leslie: I am hoping that the Committee will also reject and remove clause 3 from the Bill, for reasons similar to those that we discussed in the previous debate, and also for additional reasons.
	The clause insists that the Lord Chancellor must have at least two years' experience of holding high judicial office, or 12 years' experience as a qualifying practitioner of the law, as set out in clause 22—in other words, as a lawyer. The new role of the Lord Chancellor in the Bill means that it is no longer necessary to have specific legal qualifications or experience in practice, and there is no reason why this ministerial post should require particular qualifications when other ministerial posts do not. The Lord Chancellor no more needs to be a lawyer than the Secretary of State for Health needs to be a doctor, the Chancellor of the Exchequer a qualified accountant or the Secretary of State for Education and Skills a university lecturer.
	Hon. Members may well think that it is desirable for the Lord Chancellor to have legal qualifications, but that is entirely different from saying that the office holder must in all circumstances have had 12 years' practice as a lawyer or be a judge. The concordat with the Lord Chief Justice, which was debated earlier in today's proceedings, was negotiated explicitly on the basis that the reformed ministerial role requires no special qualification, and that was reflected in the comments made by the Lord Chief Justice that I, and my hon. and learned Friend the Member for Redcar (Vera Baird), quoted earlier.
	With the transfer of the judicial selection process to a new independent judicial appointments commission and the consequent limiting of the Lord Chancellor's discretion, there is no continuing requirement for him to have legal qualifications, as he will be acting on the recommendations of the commission and will hence be accountable to Parliament. It will be the job of the commission to weigh up the precise legal abilities of candidates.In respect of the Lord Chancellor's duty to uphold judicial independence and the rule of law, the key qualities are not legal qualifications, but more the character and judgment of the person holding the office. Legal qualifications do not guarantee that the Lord Chancellor will have the strength of character to fulfil those particular duties.

Keith Vaz: But is it not the case that the Minister responsible will have to have knowledge of the candidates? Although only one candidate will be put forward, it will be possible, will it not, for the Lord Chancellor—the Secretary of State for Constitutional Affairs—to reject and send back a candidate for the supreme court, for example? Surely it would be an advantage if the person who held the office had knowledge of the Bar, in particular, because that is where the judiciary is drawn from initially, and they would then have knowledge of the personalities involved.

Christopher Leslie: That may be an advantage and it may be desirable, but it is not fundamentally necessary for the conduct of this particular office. It is not essential for Ministers in other ministerial roles to have knowledge of the candidates whom they wish to appoint to posts of a non-judicial nature.

Si�n Simon: Does my hon. Friend agree that it might be undesirable for the Minister to be a lawyer selecting from a group that people outside might view as a bunch of his pals? These days, we have such a thing as equal opportunities. The notion of a Minister selecting from a pool of people whom he or she knows and grew up with professionally might, in some circumstances, be considered a negative and a bad thing.

Christopher Leslie: There is equal virtue in that point as in the point made earlier. That may well be undesirable in the view of those who believe that the holder of the post must have a certain degree of objectivity in making appointments without fear or favour from the body of potential candidates and ensuring that there is a certain amount of distance and fairness in the appointment process. We wish to create a judicial appointments commission partly in order to move away from even the suggestion that appointments are made from among people who are perhaps closest to the appointer, and to ensure that they are made solely on merit according to the commission's assessment.
	My hon. Friend the Member for Birmingham, Erdington (Mr. Simon) makes a reasonable point. I am not saying that it is or is not desirable that the Lord Chancellor should or should not be a lawyerI am saying that such a qualification is not an essential prerequisite, and a non-lawyer is not incapable of undertaking this fundamentally ministerial office.

Oliver Heald: I declare that I am a barristernot practising, although I got more than 12 years in.
	Given the role of the Lord Chancellor in sticking up for judicial independence and dealing with complicated points on the rule of the law of the sort that we have debated, will it not be a huge disadvantage if he is not a lawyer?

Christopher Leslie: No. As I say, I do not regard the fact that one might have reached a certain number of years of practice in a particular profession as an absolute requirement for having the strength of character to guard the independence of the judiciary or stand up for the rule of law. Those are characteristics of an individual with strength of character and good sound judgment. Those are the qualifications necessary in the person who is best for the job; someone's being a lawyer does not fundamentally guarantee that they do or do not have them. It may be an advantage to have a certain knowledge of the law, but it is not a fundamental requirement.
	In fact, we should be very cautious of any notion that power should reside exclusively with one body or one group of individuals. The law does not belong to lawyers, and the office of Lord Chancellor should not belong to any particular profession or class of people. The Prime Minister of the day should be able to pick the best person for the job from the widest pool of candidates, not just from judicial office holders or senior lawyers. A senior lawyer may be the best person to perform the role, but we have no good reason to constrain that choice with statutory limitations in the rigid manner proposed in clause 3, and I strongly urge the Committee to resist it.

Jonathan Djanogly: Lord Kingsland, the shadow Lord Chancellor, successfully moved an amendment on Report in the House of Lords to require the Lord Chancellor either to have held high judicial office for at least two years, have practised as a qualifying practitioner for at least 12 yearsI should like to declare that I am a practising solicitoror be serving as Law Officer of the Crown.
	The Constitutional Affairs Committee report concluded that it
	may be an advantage for the holder of the post of Lord Chancellor to be a senior lawyer.
	I admit that that is hardly the most decisive of recommendations, but it just about constitutes one. Our core argument is that the Lord Chancellor plays a central role in administering justice, including being involved in appointing, disciplining and protecting the judiciary, and that there is therefore a need for legal understanding.
	Let me briefly explain some of the functions that will remain with the Lord Chancellor. They include: functions that relate to the framework for organising the courts system; setting the jurisdictional boundaries in England and Wales; providing and allocating financial material and human resources for the administration of justice; matters regarding the pay, pensions and terms and conditions of the judiciary, and providing staff and resources for judicial training. They also include determining the overall number of judges and the distribution of business between the different levels of the varying courts.

Si�n Simon: I could do that, and I am not a lawyer.

Jonathan Djanogly: The hon. Gentleman may believe that he has a good understanding of jurisdictional boundaries in England and Wales, but that would have to be seen. If he will hear me out, the jobs get even more complicated.
	We should note that the Bill has been complicated because the functions of the Lord Chancellor that do not require consultation with the Lord Chief Justice or his concurrence have been removed by the decision of the other place to retain the office of Lord Chancellor. Furthermore, many aspects remain on which the Lord Chancellor and the Lord Chief Justice need to work together regularly and closely. Although the Lord Chief Justice is to take over the Lord Chancellor's rule-making powers that are not exercised by rule committees in order to mirror the Lord Chancellor's existing statutory powers to allow or disallow the rules made by rule committees, the Lord Chancellor's agreement to any rules that the Lord Chief Justice makes will be required. I should like the hon. Member for Birmingham, Erdington (Mr. Simon) to try that one. We must note that the Lord Chief Justice will assume the Lord Chancellor's functions on making practice directions. Again, that will be with the Lord Chancellor's concurrence.
	Earlier, the Under-Secretary said that the number of years that a lawyer has practised does not by itself lead to qualification for the job. I agree to some extent. However, a non-senior lawyer, let alone a non-lawyer, would have a hard if not impossible time as Lord Chancellor, given the requirements of the role. A specific number of years of practice does not make someone eligible, but the job specification makes it unlikely that anyone other than a lawyer could do the job.
	When he moved his amendment, Lord Kingsland said that he understood that the Lord Chief Justice supported it. Earlier in the debate, Lord Woolf, Lord Chief Justice and chairman of the Judges Council, summarised the council's position thus:
	At a meeting on 24 November last, the Judges' Council unanimously approved the Bill, subject to the concerns on which I must now address your Lordships. The first concern is that there should be a clear statement on the face of the Bill that the holder of my office will be the head of the judiciary. Without this amendment to the Bill, the Judges' Council is concerned that the retention of the title of Lord Chancellor could send a confusing message as to the role of the holder of my office in the future. The noble and learned Lord the Lord Chancellor recognises the validity of that point and is proposing Amendment No. 11 to Clause 3, which of course I support.
	Subject to that clarification, the Judges' Council would welcome the retention of an office called the Lord Chancellor. It would like to see a requirement that the holder should be a lawyer, ideally with similar qualifications to those required before a person can be appointed a High Court judge. The Lord Chancellor will not be a judge, however, and so he should not take the judicial oath . . . there is a proposal for a different form of oath in one of the groups of amendments.[Official Report, House of Lords, 7 December 2004; Vol. 667, c. 7578.]
	The Bill delivered to us from another place provides a balanced approach to the role of the Lord Chancellor, and plays an important part in guaranteeing the continued independence of the judiciary. We consider a requirement for the Lord Chancellor to be a Member of the House of Lords and a senior lawyer to be part of that balance. That balance was carefully struck in the other place and it is the best formula for us to retain in this place.

Keith Vaz: I should like to declare an interest, Mr. Stevenson. I am a non-practising barrister and my wife holds a part-time judicial appointment.
	I am troubled by what the Minister said this evening, not because I do not have enormous respect for him I do. This issue occupied the Select Committee for a while, and the reason why there was not a decisive outcome to those discussionsalthough the hon. Member for Huntingdon (Mr. Djanogly) thinks that there was, this is the first time that I have heard the word may being used to describe a decisive outcomewas that there was a genuine division among members of the Committee on the issue. It was only thanks to the avuncular and consensual chairing by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) that we managed to arrive at the words in our report.
	I am of the view that the holder of the office ought to be a lawyer, although I was happy to go along with the recommendations of the Select Committee, because they represent a firm indication of the kind of person who we think should occupy the position. The Minister's argumenthe put it forward very eloquently again this eveningis that if the Secretary of State for Health is not a doctor, why should the Secretary of State for Constitutional Affairs be a lawyer? That is correct, although the Secretary of State for Health probably has to be a non-smoker these days to be able to retain the position

Christopher Leslie: Not by statute.

Keith Vaz: Not by statute, but by convention and by policy. I note that my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) put in a bid for the job of Lord Chancellor on the ground that he thought he could do it. His wonderful hairstyle would mean that he would not need to purchase a wig. His suggestion opens up the possibility that anyone could be appointed to the position, which deals with the important areas that have been dealt with by the hon. Member for Huntingdon.

Si�n Simon: Is my hon. Friend saying that if I could do the job, anyone could do it? I was saying that a person would not have to be a lawyer to do it, therefore I could do it.

Keith Vaz: I am sure that the Whips will have noticed my hon. Friend's second bid for the post.
	The fact remains that of course the Prime Minister is going to appoint whoever he wants to this position, assuming that people are appointed on the basis of merit in politics. He will get the best man or woman for the job, irrespective of whether that person is a lawyer or not. The way in which the Select Committee has moved with regard to its recommendations signifies the desire that the person ought to be a lawyer, and a senior lawyer at that. Where the Minister has got me is with regard to the very restrictive nature of the clause as it has been draftedand that is why I shall support the Government in the vote.
	I am not clear why there would be any doubt that the person serving as a Law Officer of the Crown should have
	practised as a qualifying practitioner,
	although I note that the Solicitor-General did not practise as a qualified practitionernor, I think, did her predecessor. Perhaps the Minister will tell us why this provision has been put into the Bill, because I did not follow the deliberations on it in another place. I would have thought that it was pretty obvious that the Law Officers should be members of the Bar, or members of the solicitors' profession, as is the case with the present Solicitor-General. I know that she was made a Queen's Counsel, as was her predecessor, my hon. and learned Friend the Member for Dudley, North (Ross Cranston), just before they assumed office. I did not think there was any doubt that the Attorney-General and the Solicitor-General ought to be members of the profession, although both are senior members of the profession.

Peter Bottomley: I do not disagree with the hon. Gentleman, except in the context of the way in which we will vote, but I think the answer to the qualified practitioner question is tied to clause 22, which allows Scottish lawyers to be considered as well. It is a way of embracing all qualified lawyers.

Keith Vaz: We now have a Law Officer on the Front Bench who happens to be a Scottish Law Officer, and I am grateful to the hon. Gentleman for correcting my misinterpretation of what is going on.
	The concordat is only part of what concerns us. Someone who is asked to consider the merits of candidates for the supreme court and can reject a candidate whom he does not wantwhich the Secretary of State, the Lord Chancellor, will be able to domust have a knowledge of the law and the personalities within it. That cannot be acquired over a short period; it must be acquired over a number of years.
	Any Prime Minister, bearing in mind the nature of the office and the deliberations that have taken place here and in the other placeand, no doubt, reading the report of deliberations in the Select Committee with great carewill know how important it is for that office to be held by a senior member of the profession. I think it entirely unreasonable to restrict it to those who have held high judicial office for two years, which is another reason why I cannot support clause 3. I cannot recall in recent history the appointment of a Lord Chancellor who had first been a judge. I know that senior QCs have been appointed, but we have certainly not had any judges while I have been a Member of Parliament.

Edward Garnier: Lord Mackay of Clashfern was a Scottish judge before becoming a United Kingdom Law Lord, and subsequently Lord Chancellor.

Keith Vaz: He is one of three who have occupied that position over the past 15 years or so.
	I think the Minister should understand our concern in the House of Commons about the type of figure who could occupy this post. This is not to do with an age qualification; it is not necessarily to do with the fact that someone should have been a Member of this House for a number of years. It is to do with the fact that this is a very important office in the land, and even the office of Secretary of Statewithout the judicial functions and the Speakership of the Lords, which will goremains a very important post in Government.
	I had the privilege of serving the two most recent Lord Chancellors, as Parliamentary Private Secretary to the current one and, in the case of the last one, as a member of the Government. They wereLord Falconer, of course, is still therebig figures in the legal establishment. Before the current Lord Chancellor became a Member of the House of Lords he was a very senior and highly successful member of the Bar, and I believe he commands enormous respect in the professions and among the judiciary. The same applied to his predecessor, Lord Irvine, and to Lord Mackay. They are big figures, who have occupied big positions in Government.
	I hope that when the Prime Minister comes to make this appointment, he will not choose anyone for the job just because he or she meets the minimum criteria and qualification requirements. I hope that he will choose someone with the seniority that would be expected for the post. I think that he will choose a lawyer, because it is an obvious post for a lawyerand let us face it: there are an awful lot of lawyers for him to choose from. Of course he can choose someone else if he wants.
	However, given the views of the Committee and given the need for that person to interact on a constant and continuing basis with the high judiciary, it is important to have a lawyer in that position. That is why I was happy to go along with the consensual words of the Chairman of the Select Committee. They are not absolutely decisive, as I said at the start. They are not saying, As this clause says, it must be this, that or the other, but they indicate what we hope will be the case, and that is good enough for me.

Alan Beith: It is obvious from the carefully argued contribution of the hon. Member for Leicester, East (Keith Vaz) that there was a range of views in the Select Committee, but they were not impossible to reconcile, as the words that we have used show. I am persuaded to some extent by his arguments, but I would not rest my case on the view that familiarity with the Bar is a good argument for having a lawyer in this position. As the hon. Member for Birmingham, Erdington (Mr. Simon) pointed out, before he got around to announcing his own claims for office, knowledge of some of the candidates is not necessarily a good position from which to secure dispassionate analysis of a wide range of candidates. Indeed, the last person I would expect to argue that particular view is the hon. Member for Leicester, East, who rightly focused the Select Committee's attention, on a number of occasions, on the need to widen the pool from which candidates for senior judicial officeindeed, junior judicial officeare chosen.
	As we found when we looked at the changes in the Scottish system, familiarity with a certain part of the legal profession is sometimes a barrier. In Scotland, the Edinburgh establishment seemed long to dominate judicial appointments. That was one of the motives for creating an appointments commission. Therefore, in England there are dangers not simply of cronyism, but of being too aware of a particular part of the profession to take a dispassionate view. However, the whole nature of judicial appointments will change under the Bill.
	If a Lord Chancellor comes to consider a judicial appointment and contemplates rejecting it, he would have to have advice before him. Indeed, he would not be discharging his duty properly if he did not ensure that he had appropriate advice on the reasons for rejecting the candidate or for accepting the nomination.
	A Minister dealing with a complicated medical issue has to take advice before reaching a decision. The difference between the Secretary of State for Health in taking advice on a difficult medical decision and the Lord Chancellor is that, in the Lord Chancellor's case, the presumed mechanism is that he accepts the recommendation of the appointments commission and only departs from it if he has found compelling reasons to do so. In those circumstances, he must surely have had to take appropriate advice and to ensure that he had a range of dispassionate advice before him. It is possible to do the job without the familiarity with the profession that experience of serving as a judge or at the Bar for 12 years would give.
	It can still be argued that the legal profession and the judiciary may be a lot more comfortable, certainly in the early years of the new system, with someone who they recognise as having authority in their field. That is an advantage that the Prime Minister ought to weigh when considering the making of an appointment. It probably would be considered carefully.
	It is not the same with the Law Officers as we usually understand the term, whether the Advocate-General or the Solicitor-General, who are in principle expected to take cases on behalf of the Government and to appear, as the Attorney-General did only the other day, in court representing the Government. Active participation and qualification in the profession are requirements for carrying out that job. Appointments to that post have changed in recent years and there has been a much greater tendency, particularly with the Attorney-General, to appoint someone from outside active politics, who may be politically sympathetic but whose essential qualification is that he is able to give the Government high quality legal advice and to appear for the Government in some of the more important cases to which they are a party. That is a different situation from being the Minister who both runs a large Department and exercises certain functions where he confirms or concurs with decisions that come up through a process, at the head of which is the Lord Chief Justice. All those provisions were included to ensure that too much did not rest upon the shoulders of a politician in an area where the Government were, rightly, trying to ensure that appointments were not made on anything like political grounds.
	It seems to me that the job could be done by someone who is not a lawyer. He would have more homework to do, just as being Chairman of a Select Committee requires extra homework, but I am very glad that the post will not be confined to lawyers. It would be a bad principle to follow that line. Again, as in the case of a Chairman of a Select Committee, any area where someone has to tangle with the law, for whatever reason, requires looking carefully into a wide range of matters, but that is not a reason for formally excluding from the Lord Chancellorship for ever, or for as long as the legislation stands, someone who does not have the legal qualifications specified in the clause. Some people who do not meet that requirement might well do the job to a very high standard.
	I stand by the consensus viewpoint that the Select Committee reachedthat, while it may be an advantage for the holder of the post of Lord Chancellor to be a senior lawyer, it does not and should not need to be written into the Bill. Some of my colleagues from the Select Committee have already explained why.

Edward Garnier: I largely agree with the thrust of what my constituency neighbour, the hon. Member for Leicester, East (Keith Vaz), said a few moments ago. The reasons that he gently put forward reinforced what I said at the outset of our debate this afternoonthat there is a growing gap between the law in its wider sense and Parliament, which is much to be regretted.
	The closer the understanding between the law and Parliamentthose who make the law and those who have to apply and interpret itthe better it is for the people of our country. Too often, the House passes laws that make very little legal sense when they come to be applied in the courts in particular cases, whether civil or criminal, and particularly in the field of criminal law. If the Government have their way today and remove clause 3 as they did clause 2the two clauses are very much of a piecethe greater will be the distance between the two institutions and it will grow to our mutual disbenefit.
	Under the new regime, the Lord Chancellor will not really be a Lord Chancellorhe will be no more than another head of a public Department. Just as the Secretaries of State for Health, for Transport or for Defence do not have to be qualified doctors, lorry drivers or soldiers, so it will be perfectly possible under the modern regime for the next so-called Lord Chancellorwhether he or she is, as I hope, in the House of Lords or in the Commonsto carry out the work of arranging the divisions of various circuits, for example. However, that rather misses the point of the value of the Lord Chancellor's office, which is being wholly undermined and destroyed by the Bill.
	I believe that it is important for the Lord Chancellor not to be just another jobbing Secretary of State. I happen to believe that the office of Lord Chancellor has traditionally been accorded rather greater importance than that, and that we are devaluing it and the work that the office holder does by the arrangements that the Government are implementing through the Bill. It is a regrettable step that we are having to witness.
	As I said when we debated clause 2, I am aware that I do not have at my disposal the necessary power in numbers to defeat the Government's intentions, so I shall have to await another opportunity to put this right, but it is not right for the Government to inflict this wrong without Opposition Members expressing their concerns about the damage that will be inflicted.
	I fully accept that my argument will not appeal to many, if any, Labour Members, and still less to the Chairman of the Constitutional Affairs Committee. He is an eminent parliamentarian and Chairman of his Committee, and not a member of either of the two legal professions in this country. However, I am less worried about that argument than about the downgrading and diminution of the office of the Lord Chancellor. I am concerned that the office is being turned into something else. The Government are trying to fool us into thinking that the office of Lord Chancellor will be maintained in its previous state simply because the name will be retained. However, that is rather like unscrewing the name plate from a Rolls-Royce, sticking it on a lesser vehicle and claiming that the lesser vehicle is none the less a Rolls-Roycethat was perhaps not the best example, but I hope that it made the point that I wished to get across.
	I regret that I am powerless to persuade the Committee, due not so much to the Government's arguments, but to their numbers. I repeat my worry that there is a growing gap between the institutions of Parliament and the law. Despite what has been said one way or another, I think that the judiciary look to someone with authority whom they respect to speak up for them in the councils of Government. The Lord Chief Justice will take over that role, and under clause 6, which we were not able to discuss because of the guillotine, he will be able to present a written representation to Parliament. However, that is not quite the same as having a Lord Chancellor who is well versed in the eccentric, yet none the less valuable, traditions of the legal establishment and able to speak up for the law, the rule of law and the independence of the judiciary at the Cabinet table and in the Chamber of the House of Lords because of his professional and political upbringing.

Oliver Heald: It has widely been accepted here and in the other place that the Lord Chancellor will have the role of speaking up in the Cabinet on important matters to which the rule of law may be relevant, such as detaining terrorist suspects and the like. Does my hon. and learned Friend agree that if the Lord Chancellor is not a lawyer and does not understand the issues, he will be poorer in that role?

Edward Garnier: I have no doubt that anyone who is capable of being a good Secretary of State will have the energy and intellect to understand basic ethics and learn about the requirements of the rule of law. However, that person would be at a disadvantage because he would have to learn about it, whereas it was second nature for Lord Irvine, Lord Mackay and Lord Falconer. I am decrying not the intellectual abilities of a non-legal Lord Chancellor, but the downgrading of the office and the growing distance between the two institutions.
	A consequence of the situation will be the increasing importance of the Attorney-General as the defender of the law's institutions in Parliament. Although I disagree with the current Attorney-General's politics, he is an extremely fine lawyer. Perhaps because he sits in the House of Lords, he has had the time to appear as the Government's chief advocate in the courts.

Keith Vaz: The hon. and learned Gentleman wants them all to be in the House of Lords.

Edward Garnier: I am talking about the Attorney-General, not the Lord Chancellor. The Advocate-General for Scotland is in the Chamber. I think that she has appeared for the Government several times in the European Court of Justice and perhaps she has appeared in the House of Lords acting for the Scottish Executive.

Lynda Clark: indicated dissent.

Edward Garnier: Whatever the hon. and learned Lady does, she knows rather more about it than I. The simple point is that the Law Officers will increasingly be taking over the protective role of the Lord Chancellor, because the Government are giving up the Lord Chancellor's role as protector of the judiciary and the interests of the rule of law.

Christopher Leslie: indicated dissent.

Edward Garnier: I see that the Minister disagrees. I know that the Bill contains guarantees and so forth, but that merely underlines the point that I made about the growing gap. Lord Chancellors did not need to have that set down because they understood what their job was, but the job is changing. The job of the Lord Chancellor under the Labour Government will not be the job of the Lord Chancellor in the days of Lord Mackay, Lord Irvine or any of their recent predecessors. I regret that; it is a retrograde move, but there is sweet Fanny Adams I can do about it.

Vera Baird: I am concerned about the precise nature of the clause, which requires a person either to be a High Court judge,
	to have held judicial office for at least two years,
	orand it is either/or so obviously one does not have to be a High Court judgeto have
	practised as a qualifying practitioner . . . for at least 12 years.
	Under clause 22, a qualifying practitioner must have a Supreme Court qualification under section 71 of the Courts and Legal Services Act 1990, which states that a person must have rights of audience in all the proceedings of the Supreme Court. That is of course not the new supreme court, but the old one, which is the Court of Appeal and the High Court.
	I am right about the meaning because the next tier of qualification in the 1990 Act is a person who has a High Court qualification, who is only a High Court advocate and not a Court of Appeal one. It is thus definitely a requirement under the clause that a person must for at least 12 years have been a person with rights of audience in the Court of Appeal and the High Court. That excludes an enormous number of senior and good lawyers.
	Many, many solicitors are not High Court advocates because that does not enter into their way of being. They may prepare, and know a great deal about, High Court proceedings, because they are the solicitors who back up senior High Court advocates with their preparation, but they are not themselves High Court advocates. One could imagine that commercial solicitors, family solicitors or senior partners in a number of types of solicitor's practices might be admirably qualified in every way and would fit the mould that even Opposition Members are hankering for, but they will be excluded by the clause. It is a bad idea because it could exclude many good people.
	On the other hand, the clause gives little protection from anything in the context of the Bar, because every member of the practising Bar is a Supreme Court advocate from day one as long as they remain a practising member of the Bar. Consequently, that does not require someone to be a senior lawyer; it requires them only to have been called for 12 years, which, as most Members who are lawyers will realise, is a calibre they will have attained by the age of about 33, 34 or 35. It does not require a barrister to be a senior lawyer and quite a few solicitors are likely to qualify. For instance, there is no protection in requiring a barrister of 12 years' call: someone might have undertaken magistrates court advocacy or industrial tribunal cases, or they mightbeing in private practicedo Chancery paperwork and never ever go to court, because they retain their status as a Supreme Court advocate by virtue of being in independent private practice. There is no protection of the kind that members of the Committee are seeking from that qualification. It is the wrong test. What is the point of it?
	The clause would excludewould it not?a senior professor of law who might be ideal but who had never become a High Court advocate. He may have been a solicitor, but he may not even have done that; he may have been a law commissioner for several years. He might be an admirable person to take up the post, yet under the clause he would be excluded.
	Equally, it seems to me that a professor of accountancy, who might have been seconded to the Court Service or have advised in detail about how the Court Service should organise its accounting procedures and finances, will understand its administration in far more detail than a barrister of 12 years' call possibly could, popping in and out of court to do a case or never going there at all. It seems to me that such a person could admirably understand the way the courts and their financing work and would be an admirable choice for that role.
	Somebody from social sciences who might have been called in to try to turn the courts into what we all want them to bean institution that puts the public participants firstmay also have looked in huge detail at the way in which courts function, in order to try to guarantee that witnesses, victims and so on are looked after properly. They will know extremely well from start to finish, from A to Z, far better than a barrister of 12 years' call, how the courts workand they will have known for many years. All such people will be excluded by the requirement of being a Supreme Court advocate, a High Court judge or a lawyer.
	The provision is quite unnecessary. It gives no protection and does the damage of excluding people from other than the legal profession who could be just as good as a lawyer. Insisting on such a provision in legislation has the additional danger of making the job look like it is there for the protection and promotion of lawyers. In fact, it is not; it is about administering a public service. As such, it can be done by anyone who has any of the range of qualifications that I have mentioned and many many more that I have not thought about. I urge Members not to vote for this silly clause.

John Redwood: The Minister has argued two very different positions. Before we vote, it would be good to have a little clarification of which the Government believe in. On one hand, the Minister wishes to agree with the hon. and learned Member for Redcar (Vera Baird) and the hon. Member for Birmingham, Erdington (Mr. Simon), who argue that more or less anybody can be Lord Chancellor, as slimmed down, redefined and modernised by this legislation. On the other hand, the hon. Member for Leicester, East (Keith Vaz) made a cogent case for the proposition that even the slimmed down, modernised and damaged version of the Lord Chancellor that we have before us in the Bill should be someone of legal distinction and knowledge, for the obvious reasons that he and my hon. Friends have set out.
	I have a simple question for the Minister, the answer to which would help Members decide how to vote: were this Government to stay in office through another change of Lord Chancellor, would the Prime Minister want to appoint someone who was a good lawyer, because he accepts the argument of the hon. Member for Leicester, East, or does the Prime Minister think that modernisation would be advanced by definitely not having a lawyer and by taking advantage of the greater freedom for which the Minister is urging the Committee to vote?

Si�n Simon: I had no intention of speaking in this debate. I wandered into the Chamber and thought that I would listen and learn from more learned hon. Friends and colleagues, but I feel as if I have wandered into some bizarre little world of its own. People keep sidling up to me and asking, What are you doing here? You aren't a lawyer. I think that I am quite unusual in this Chamber in not being a lawyer. [Interruption.] I know that there are others present who are not lawyers.

Christopher Leslie: I am not a lawyer.

Si�n Simon: The Minister notes that he is not a lawyer, which is indeed a relief. Nevertheless, there is a preponderance of lawyers present, particularly on the Conservative Benches. [Interruption.] They have cheated a little

George Stevenson: Order. We can dissect different professionsI for one am not a lawyer, but that is irrelevantbut will the hon. Gentleman get back to the business before the Committee?

Si�n Simon: Regardless of whether Opposition Members are preponderantly lawyers, their argument that in order to be Lord Chancellor one needs to be a lawyer is absurd. The right hon. Member for Wokingham (Mr. Redwood) characterised my hon. and learned Friend the Member for Redcar (Vera Baird) and me as having argued that anybody can be Lord Chancellor. I am arguing that anybody can be anything. Anybody can be Prime Minister; anybody can be Home Secretary. One does not have to have specialist knowledge or professional expertise to run a Government Department. That much ought to be obvious. I cannot imagine what people in the real world think when they see Benches stuffed full of lawyers arguing that the only people who can head a law Department are lawyers. One does not have to be a teacher to run the Department for Education and Skills, one does not have to be a doctor to run the Department of Health, and one does not have to have been to Prime Minister school and gained 12 years' experience to be Prime Minister. It is self-evidently not the case, therefore, that one must be a lawyer to run the Department for Constitutional Affairs.
	The hon. and learned Member for Harborough (Mr. Garnier) keeps telling us that the Government are intellectually dishonest, because they have changed the nature of the job while keeping the name of Lord Chancellor. There can be few constitutional jobs that have changed more while keeping their name. It is ridiculous to argue that the difference between the next Lord Chancellor and Lord Mackay of Clashfern is greater than the difference between the present incumbent and the Lord Chancellor who, 500 years ago, did a completely different job in a completely different environment.
	The Lord Chancellor does not need to be a lawyer nor, as the Minister said, do we need to put such a requirement into statute. Indeed, it could be argued that it would be better if the Lord Chancellor were not a lawyer. As my hon. and learned Friend the Member for Redcar argued, if the holder of the post is a lawyer, it may, heaven forfend, make the Lord Chancellor look like a producerist, defensive protector of the interests of the legal profession. Lawyers are not necessarily interested in the impartial, efficient and admirable administration of justicesome of them may be interested in their own enrichment and vainglory. The notion that we should legislate to guarantee that they have one of their own to speak for and defend them is not just wrong but ridiculous.

Christopher Leslie: It has been useful to hear the arguments adduced in favour of clause 3, because, as with clause 2, they are thin and threadbare. Indeed, clause 3 is a step backwards in time. There is no statutory requirement at present for the Lord Chancellor to be a lawyer. That is simply a convention. Enshrining in statute a requirement for 12 years of senior legal practice or two years' experience as a judge makes the process of appointment more rigid and less flexible. It is strange that none of the Members who spoke in favour of clause 3 could suggest why the reformed office of Lord Chancellor, even if they do not like the way in which will be shaped, should be different from the post of Health Secretary or Education Secretary. The shadow Health Secretary, the hon. Member for South Cambridgeshire (Mr. Lansley), has no medical qualifications, yet he would make health inspector appointments. The shadow Education Secretary, the hon. Member for Westmorland and Lonsdale (Mr. Collins), has no teaching qualifications, yet he hopes to make school inspector appointments. It is not axiomatic that the person holding the ministerial job of Lord Chancellor should have legal qualifications.
	My hon. Friend the Member for Leicester, East (Keith Vaz) said that it is desirable that the Lord Chancellor is a lawyer, but he accepted that clause 3 is too rigid. Conversely, my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) argued that it might even be better if that individual were not a lawyer so we do not have what he characterised as a producer interest in the post. I do not seek to say whether it is, or is not, a good thing, but I dislike the mandatory requirement for the post to be held by an individual with a particular qualification.
	My hon. Friend the Member for Birmingham, Erdington argued that anyone could become Prime Minister or Home Secretary. It is almost like the famous American dream: One day, even you, young fellow my lad, could grow up to be President of the United States. What that individual needs is character, integrity, strength of judgment and so forth. We should recognise the fact that the ministerial post of Lord Chancellor belongs not to a certain profession, but to all the people. Legislation should not set in stone such unnecessary exclusivity. We know what the qualifications for that ministerial office need to be: competence, judgment, character and accountability.
	The right hon. Member for Wokingham (Mr. Redwood) asked whether the Prime Minister would appoint lawyers in future. My answer is that he must ask him at Prime Minister's Question Time, but the Prime Minister will certainly be held accountable for any appointment that was deemed to be irrational or illogical, or involved not appointing the right person for the job.
	Given the reformed status of the office of the Lord Chancellor and the fact that that individual will no longer be head of the judiciary or a Law Lord who sits as a judge, the post holder can sit in either House of Parliament. There is no longer a rational requirement for any legal qualification, and I hope that the Committee will reject clause 3.

Oliver Heald: I agree with one thing that the Minister said: the shadow Secretary of State for Health will be making appointments after the general electionand the sooner, the better.
	I shall comment on the speeches of the hon. and learned Member for Redcar (Vera Baird) and her partner in crime, the hon. Member for Birmingham, Erdington (Mr. Simon). Of course almost anyone could be appointed to the job if someone chose to do so, but given that it is an important job with particular responsibilitiesincluding standing up for the rule of law in Cabinet and ensuring that judicial independence continues, the residual role of making appointments to the judiciary and the other important roles that relate to the jurisdiction of the courtsit would be a help if the person concerned were a lawyer. Indeed, the Select Committee on Constitutional Affairs said that that may be a help.
	The Judges Council, which knows a thing or two about this, particularly wants the post holder to be a lawyer, ideally with qualifications similar to those required before a person can be appointed a High Court judge. Those on the council wanted that requirement not to enrich themselves or to be vainglorious, or anything of that sort, as described by the hon. Member for Birmingham, Erdington but because the Lord Chancellor's role is important and such knowledge is extremely helpful in the role.
	It is all very wellthis is a bit like another point that I have madesaying that it is preferable to have a lawyer in the role of Lord Chancellor, but if it is preferable, why should we take second best? That is why I continue to argue that clause 3 is vital and that such a requirement would be helpful to the person in that role, so we wish to divide the House on the issue.

Question put, That the clause stand part of the Bill:
	The Committee divided: Ayes 126, Noes 272.

Question accordingly negatived.
	Clause 3 disagreed to.
	To report progress and ask leave to sit again.[Gillian Merron.]
	Committee report progress; to sit again tomorrow.

DELEGATED LEGISLATION

Motion made, and Question put forthwith, pursuant to Standing Order No. 118 (6) (Standing Committees on Delegated Legislation),

Contracting out

That the draft Local Authorities (Contracting Out of BID Levy Billing, Collection and Enforcement Functions) Order 2004, which was laid before this House on 15th December, be approved.[Gillian Merron.]
	Question agreed to.

LISTED EVENTS (SPORTS)

Motion made, and Question proposed, That this House do now adjourn.[Gillian Merron.]

John Grogan: For the many, not the few is one of the principles on which this Government are built, and I would contend that, in a modest way, listed events in their various guises since their inception in the 1950s reflect this aspiration. I would not argue that this is one of the most important debates to come before the Houseit is not a matter of war and peace or poverty, or concerning the many threats to our environmentbut it does affect the quality of life of many of our citizens, young and old, rich and poor, throughout the land.
	As I said, listed events have come in many guises down the years. They first came about through the Television Act 1954, which prevented any one broadcaster from obtaining exclusive rights to certain sporting events of national interest. Of course, in those days there were only two broadcasters: the BBC and ITV. The Broadcasting Act 1990 prevented listed events from being shown on a pay-per-view basis. Then the Broadcasting Act 1996, recognising the threat of subscription as opposed to pay-per-view television, protected the availability of live coverage of listed events on free-to-air television channels with national coverage. That is the basis of the current rules, which were enshrined in the Communications Act 2003.
	Although the legislation has changed down the years, the general principles underlying it have remained the samethat is, that some events are of such national significance, and in some cases of such international significance, that a large part of the nation wants to be part of them. People want to feel that they are in the stadium watching the Olympics, the grand national or the World cup finals. These events in some way bind the nation together.
	No one is saying that the terrestrial TV stations should have these events for free. They must pay a fair and reasonable price, and if there is a dispute, the price could be judged by the regulator, currently Ofcom. It is interesting that down the years the list has largely policed itself. As far as I am aware, there has never been a case in which Ofcom has had to deliberate on a fair and reasonable price.
	The recent history of the football World cup and the broadcasting of it illustrates the importance of the list to our nation. Some hon. Members may recall that the rights to the 2002 and 2006 World cup were sold by FIFA to Kirsch, a German broadcaster that tried to find a way round our listed events legislationany possible loophole. In the end it did a deal with the BBC and ITV whereby both those broadcasters paid far more than they had paid in the pastundoubtedly a fair and reasonable pricebut everyone in Britain will be able to see all the matches in Germany in the football World cup. That will not be true, incidentally, in Germany, where such stringent rules do not exist. Even though much public money will have gone into the stadiums in Germany, many of those matches will not be seen.
	At some stage in the next Parliament we need to review the list, particularly the A list consisting of events that must be shown live. It is live sport that quickens the blood, thrills the nation and inspires the young. The list was reviewed in 1990 and in 1998. The event that led me to seek the debate tonight occurred just before Christmas, when the England and Wales Cricket Board sold itself lock, stock and barrel to BSkyB. That came as a shock to many people. There were editorials about it in most of the national papers.
	The Prime Minister often says to the parliamentary Labour partyand of course I listen to everything the Prime Minister saysthat one of the best things in government is the small decisions one makes that can affect people's lives in various ways. I believe we made the wrong decision, though it was a small decision, when in 1998 the Government decided to remove test cricket from the A listfrom live coverage. BSkyB and the ECB lobbied for that. Subsequently the Secretary of State at the time, my right hon. Friend the Member for Islington, South and Finsbury (Mr. Smith), said he thought he had a gentlemen's agreement with Lord MacLaurin of the ECB that at least some cricket would remain on terrestrial television. That happened for a while under the subsequent television deal, and Channel 4 covered test cricket very well.
	However, as some of us warned, once my right hon. Friend and Lord MacLaurin were long gone from office, the next deal came around and the ECB sold out, as I said, lock, stock and barrel to BSkyB, and not for a great deal more money. The best figures that I have seen suggest that the difference between the Channel 4 bid, which was much the same as its previous bid, and the BSkyB bid was perhaps 10 per cent.not a large sum. Cricket will rue the day the deal was signed, for a number of reasons, the first of which is financial. When a sport sells out to satellite TV or subscription TV, sponsorship tends to decline. We have seen that in rugby. The Heineken cup has gone to satellite TV, and apparently Heineken is thinking of pulling out of the sponsorship. English rugby union sold itself entirely to satellite TV, but then stepped back.

Andy Reed: Does my hon. Friend agree that the financial costs are not the only consequence? More important is the fact that by removing itself to, say, Sky, with an audience of 400,000, compared with the 9 million that the Rugby Football Union would have got on BBC with the six nations tournament, it is denying the next generation of sporting heroes the opportunity to see the current sporting heroes? Often, people get involved in sport because they see Kelly Holmes or Martin Johnson doing their work week in, week out. That encourages people to get involved at local community level. The trend is dangerous because of its effect on sporting access for the future.

John Grogan: My hon. Friend puts his finger on the key point in this debate. We are all looking forward to the test match series this summer, when England will play Australia for the Ashes, and it is instructive to see how our major cricketing rivals deal with this issue. They have what they call anti-siphoning legislation, as they do not want their top sporting events to be siphoned away so that only a few people can see them. The extensive list that has been drawn up includes not only test matches in Australia, but test matches involving England and Australia that take place in England, as well as all cricket world cup matches.
	This year's series will be shown on Channel 4, because the old contract will still apply, but the next Ashes series will be shown only on BSkyB. Perhaps the Australians realise that some poor boy in 2009 in some Australian suburb may get up in the morning, watch the end of the test match, perhaps at Headingley, and be inspired to go out and play cricket. Even if he sees the match on a battered television set and his parents will never be able to afford subscription TV, he may go out and play a makeshift game all day long and perhaps one day open the batting for Australia. Is it not sad that, when that same series and Headingley test match take place, a lad from not well-off circumstances in Hunslet or Harehills, just miles from the ground in Leeds, will not be able to be inspired by watching the match live? Highlights are not really the same thing; they do not quicken the blood in the same way.

David Drew: My hon. Friend is making a very strong case. Does he agree that the problem is that we have lost not only test cricket, but all cricket, from mainstream television? Even with rugby or football, there were opportunities to watch the games, whether they were in the FA cup or different cup competitions in rugby. That will not be true of cricket, which has sold its soul completely in respect of terrestrial television. That really is unacceptable.

John Grogan: I could not agree more with my hon. Friend. The only cricket that will be shown is highlights on Channel 5, which is not available in some parts of the country. It is sad that the only listed event that was not shown even in highlights form on terrestrial TV was the cricket world cup in 2003, which featured on the B list. Perhaps it would be appropriate to say a gentle word to the BBC, suggesting that it may have a role in the televising of cricket in future and should perhaps bid for the highlights of the cricket world cup in 2007 as a way back into cricket. If Parliament puts these events on the list, our major public service broadcasters have a responsibility to at least try to show them.

Andy Reed: Particularly with the advent of BBC 3 and BBC 4, does not digital television give the BBC a significant opportunity, bearing in mind the difficulties of broadcasting cricket and the length of the game, particularly in comparison with the capabilities on Sky? Would my hon. Friend encourage the BBC to look at using BBC 3 and BBC 4 as sports channels so that sports fans can have genuine access on terrestrial television?

John Grogan: The BBC needs to use all its channels to show some sport. Indeed, there have been some very good sports documentaries on BBC 4, and a few sporting events have been shown on BBC 3. As we move into the digital future, BBC 3, which is aimed at least partially at the youth market, would be a natural home for some sports.
	Before I mention a couple of other sports, I wish to underline that cricket gets a lot of public money each year. Between 2000 and 2004, cricket at national and club level got more than 50 million of Government and lottery cash. If public money is being used to build some of the stadiums, it behoves the cricket authorities to ensure that people can see a little bit of what goes on inside them. The fear must be that cricket has sold its soul to BSkyB. Who will bid next time? Will the terrestrial broadcasters do so, or will BSkyB be the only bidder?
	I said that I would mention a couple of other sports. Tennis is worthy of mention, because it might be the next sport under threat. In Britain, only the Wimbledon finals are listed, not the Wimbledon fortnight. It was listed until 1991, but is now on the B list, not the A list. In Australia, strangely, the whole of the Wimbledon fortnight is listed and must be shown on terrestrial television. What a tragedy it would be if we could not see Tim Henman at Wimbledon. He may make the finals one day, but so far he has appeared only in the earlier part of the two weeks, when matches are not listed.
	The same applies to golf. Again, it is strange that the British Open is listed in Australia but not in Britain. There is also a case for listing the last day of the Ryder cup. Europe may be at its most popular in Britain during the Ryder cup, and it is a pity that we cannot see it live.
	I want briefly to mention the Central Council of Physical Recreation. I was rather distressed when I received its briefing for tonight's debate, although it was kind of it to provide it. It says that
	sport has never accepted the policy logic behind 'Listed Events'. This has always seemed to be a policy driven by broadcast considerations, as opposed to what is best for the sports themselves.
	I am not concerned with broadcast considerations, but with ordinary citizenssports fans, and sportsmen and women who play their sport in a village or suburban team for many years, then make the teas, coach, and try to find the next generation. They will never sit on the CCPR or in hospitality boxes, but if they are not well-off in their old age, should not theyand their grandchildrenbe able to see the great events live? I think that the CCPR, which calls itself, One voice for sport and recreation, but is really one voice for sports administrators, should rethink its policy.
	I want to draw the Minister's attention to two specific points. First, we need to review the legislation in the run-up to digital switchover, because it is not clear that it will all work, technically speaking, when that happens. Secondly, the European television without frontiers directive is to be reviewed in the next year or so, and I hope that during their presidency the Government will ensure that the clauses affecting listed events are retained.
	There is no better measure of the success of the policy of sporting listed events than that of the TV programmes that did well in viewing figures last year. The England-Portugal game had 20.7 million viewers, peaking at 24 million during penalties, and was the most watched TV event of last year. The England-France game had 17.8 million viewers. Other events that feature in the top 50 are the never-to-be-forgotten Saturday night of the victories by Kelly Holmes and the 4 x 100 m relay team; the Olympics opening ceremony, and the grand national. If those events were not listed and went to the highest bidder, much of the nation would not talk about them at the bus stop, in the school hall and in the office, because they would not have been able to see them. That would diminish our nation.
	My requests of the Minister are modest. We are approaching the election, and I suggest that it would be appropriate to include in our manifesto a couple of sentences about listed events. That would show, first, that we are proud as a Government of our record on keeping and, indeed, extending them, and that we are committed to them post-digital switchover; and secondly, that at an appropriate time we will review them and decide whether there is a case for adding to them.

Estelle Morris: I congratulate my hon. Friend the Member for Selby (Mr. Grogan) on securing the debate and the duo whom he has brought with him, my hon. Friends the Members for Loughborough (Mr. Reed) and for Stroud (Mr. Drew), on participating in it at this late hour.
	I acknowledge the interest and expertise of my hon. Friend the Member for Selby and the part that he played in scrutinising the Communications Act 2003. Although that measure offered no major changes to the aspect of communications that we are discussing, it considered it.
	I join my three hon. Friends in acknowledging the importance of sport on television. The instances that my hon. Friend the Member for Selby gave, for example, of Kelly Holmesher first victory was named the top television moment of 2004 by viewersclearly brought the nation together during the Olympics. Two and a half times as many people watched England lose the match that my hon. Friend mentioned. I was interested to hear that the number of viewers increased during penalties. I suspect that if the people who genuinely watched the penalties were counted, the figures would drop dramatically, because it was a case of watching with our eyes shut. However, it was a special evening that brought the nation together.
	Indeed, when we think back to 1966, such occasions provide several moments that we continue to talk about. They can still be unifying factors even three and four decades on. There is no difference of opinion between my hon. Friends and me about that. Sport is about national identity and national pride. When we get it right, sport at its best allows us to be different and to support different teams in a collegiate and friendly manner. I agree with my hon. Friend about the importance of the list and sport.
	My hon. Friend, however, began by referring to the many, not the few. It is important to emphasise that even 21 million are the few, not the many. We must remember that a majority chose not to watch the penalties in the European championship match when England was knocked out. We must ensure that terrestrial television offers something for all viewers, whatever their interests. It is not a matter for Government, but perhaps terrestrial channels sometimes do not bid for some sports, especially cricket, because the matches last far longer than 90 minutes, plus 30 minutes for extra time and 15 minutes for penalties.
	Let me outline Government policy for listing sport. My hon. Friend reasonably mentioned the future. He made a generous speech, and although he expressed his unhappiness about the England and Wales Cricket Board's decision, he looked to the future and to safeguarding something important. Let me therefore bring us up to date by stating Government policy. As my hon. Friend said, it is important that key sporting events are made available to all television viewers, including those who cannot afford or choose not to spend their money in that way. That has led to the solid protection by law of the listed events.
	We all agree that we cannot possibly list all sports. The listed events are those that are believed to have a special national resonance. There is a dangerand an understandable trendamong sports enthusiasts that they want their sport listed so that they can watch it free on terrestrial television. However, that is not the purpose of the list, which is to involve the nation and ensure that the unifying factor can be brought to bear.
	The listing process was reviewed in 1998 to ensure that it was as open and transparent as possible. As my hon. Friend said, the Government consulted on the criteria and then appointed an independent advisory group to make recommendations on listing. It is worth putting on record the criteria on which consultation was held and that were subsequently agreed for listing events.
	Listed events must have a special national resonance and not simply be significant to those who follow the sport. They should unite the nation in a shared point on the national calendar. The Wimbledon finals are key examples. Consideration should be given to events that are likely to command a large television audience, such as pre-eminent national or international sports events and those involving the national team or national representatives.
	The advisory group to which my hon. Friend referred considered the number of events. At that point, the notion of groups A and B came into being. Perhaps if we had not split the list into groups A and B, we would not be conducting a debate today that is based on dissatisfaction about the decision about cricket. However, it could have appeared on list A, although obviously it was put on list B. That meant that it would no longer be guaranteed to be shown live on terrestrial television, and although I accept that cricket is popular, I believe that lists A and B as a mechanism have provided an alternative in sometimes difficult times for audience share and pleasing everybody. As well as list A, which guarantees live coverage, we have list B, which guarantees showing highlights at some point. And of course, Channel 5 was able to do that with cricket. I accept the argument that Channel 5 is not as readily available throughout the nation as other terrestrial channels, but the establishment of groups A and B has enhanced the number of opportunities for our citizens to watch key events, rather than reducing it.
	There is another side to this argument. When we talk about what sports terrestrial television is not able to broadcast, we must also remember that BSkyB is able to broadcast them. We should not therefore say that everything is lost if BSkyB gets a particular contract, as long as the rules are followed. Because of the way in which the market works, the price being paid for the television rights to both live broadcasts and recorded highlights is going up and up. I suspect that that is one factor that causes difficulty for the BBC and other terrestrial channels when they are considering their need to ensure that the wider audience is catered for. In regard to terrestrial channels other than the BBC, advertising revenue might be put at risk in certain circumstances.
	I hope however that my hon. Friend will consider it a good thing that, following the signing of the Central Council of Physical Recreation's voluntary code on sports broadcasting rights in 1997 by major organisations including the England and Wales Cricket Board, those organisations are now pledging 5 per cent. of their revenue from television to grass-roots schemes.
	We can always argue about which determining factor might have made a future captain of Australia's cricket team become the brilliant player that he or she might be. They could have watched great matches on television, and I do not argue with the contention that there is nothing like watching a live match to enthuse people and to allow them to dream. For young people, such dreams are important. Equally, however, the enhanced sports facilities at grass-roots level, paid for by that 5 per cent. of the television revenue, might have been a determining factor in that young person's life.
	This is a time of great change. Ten or 15 years ago, the issues involved would have been significantly different. At issue today is the number of viewers who can watch BSkyB and who have access to digital television. My hon. Friend rightly asked why the Government did not review the list in the light of the changes, and whether we would give an undertaking to do so. I certainly cannot give him an undertaking to put such a commitment into the manifesto, as he asked. However, I could give him an undertaking to review the list, because that is absolutely essential.
	We know from other deliberations that we have had in the House that, as we move towards 2012, and as my right hon. Friend the Secretary of State carries out her review of the BBC, we are in a time when things move fast. Predicting the future is becoming increasingly difficult. However, there will presumably be an increase in the number of people subscribing to Sky and other digital outlets in the next few years, alongside the growth of freeview. That will naturally change the landscape. Nevertheless, sports rights contracts run for a number of years, and I do not see a pressing need to pledge to review the list now, or to feel under pressure to do so, given that it was reviewed in 1998. But I recognise that the list has to reflect not only the changing views of broadcasting. I do not want to fall into the trap that my hon. Friend mentioned. This is not a policy for broadcasters; it is a policy for sport and for most people who watch sport through the medium of broadcasting, so the list also has to reflect the changing views of the sports concerned. Successes in certain events resulting in increased viewer loyalty could mean that the 1998 list should be reviewed in due course.
	Looking back, it is amazing how little the sports and events that one would assume to be the most popular have changed. My hon. Friend mentioned the most popular sports and they are, in the main, the same ones that bound the nation together when I was a teenager, which was more years ago than I care to remember. We must always bear in mind, however, the potential for changing views in sport. The switch to digital broadcasting, and the move towards a multi-channel environmentwhether subscription or free to airchange the landscape. I think it not unreasonable for the Government to pledge to take that into account, and to announce, at the appropriate time, what they will do about reviewing the list. I do not know when that will be. Things may be changing too quickly for us to be able to predict it, and certainly the Government have no plans to make an announcement or name a date yet.
	The debate is timely. I thank my hon. Friend the Member for Selby for initiating it, and thank my other hon. Friends for contributing. I think it behoves the Government to make it clear to broadcasters, citizens and sports players that although the arrangements may be set in stone now, they will not be set in stone for ever. We shall want to ensure that we make the necessary changes, so that the fundamental idea that live television coverage of these key events should be a great unifying force for the nation continues to hold.
	No doubt in future years my hon. Friend will be back, asking when the Government will review the list. Long may he continue to do so. I am grateful for the opportunity to put the Government's case during this short but important debate, and to confirm their commitment to listed sport.
	Question put and agreed to.
	Adjourned accordingly at one minute past Eleven o'clock.